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2012_11-697

https://www.oyez.org/cases/2012/11-697

. Section 106 of the Copyright Act grants “the owner of copyright under this title” certain “exclusive rights,” including the right “to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership.” 17 U. S. C. §106(3). These rights are qualified, however, by the application of various limitations set forth in the next several sections of the Act, §§107 through 122. Those sections, typically entitled “Limitations on exclusive rights,” include, for example, the principle of “fair use” (§107), permission for limited library archival reproduction, (§108), and the doctrine at issue here, the “first sale” doctrine (§109). Section 109(a) sets forth the “first sale” doctrine as follows: “Notwithstanding the provisions of section 106(3) [the section that grants the owner exclusive distribution rights], the owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” (Emphasis added.) Thus, even though §106(3) forbids distribution of a copy of, say, the copyrighted novel Herzog without the copyright owner’s permission, §109(a) adds that, once a copy of Her- zog has been lawfully sold (or its ownership otherwise lawfully transferred), the buyer of that copy and subsequent owners are free to dispose of it as they wish. In copyright jargon, the “first sale” has “exhausted” the copyright owner’s §106(3) exclusive distribution right. What, however, if the copy of Herzog was printed abroad and then initially sold with the copyright owner’s permission? Does the “first sale” doctrine still apply? Is the buyer, like the buyer of a domestically manufactured copy, free to bring the copy into the United States and dispose of it as he or she wishes? To put the matter technically, an “importation” provision, §602(a)(1), says that “[i]mportation into the United States, without the authority of the owner of copyright under this title, of copies . . . of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies . . . under section 106 . . . .” 17 U. S. C. §602(a)(1) (2006 ed., Supp. V) (emphasis added). Thus §602(a)(1) makes clear that importing a copy without permission violates the owner’s exclusive distri- bution right. But in doing so, §602(a)(1) refers explicitly to the §106(3) exclusive distribution right. As we have just said, §106 is by its terms “[s]ubject to” the various doctrines and principles contained in §§107 through 122, in- cluding §109(a)’s “first sale” limitation. Do those same modifications apply—in particular, does the “first sale” modification apply—when considering whether §602(a)(1) prohibits importing a copy? In Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U.S. 135, 145 (1998), we held that §602(a)(1)’s reference to §106(3)’s exclusive distribution right incorporates the later subsections’ limitations, including, in particular, the “first sale” doctrine of §109. Thus, it might seem that, §602(a)(1) notwithstanding, one who buys a copy abroad can freely import that copy into the United States and dispose of it, just as he could had he bought the copy in the United States. But Quality King considered an instance in which the copy, though purchased abroad, was initially manufactured in the United States (and then sent abroad and sold). This case is like Quality King but for one important fact. The copies at issue here were manufactured abroad. That fact is important because §109(a) says that the “first sale” doctrine applies to “a particular copy or phonorecord lawfully made under this title.” And we must decide here whether the five words, “lawfully made under this title,” make a critical legal difference. Putting section numbers to the side, we ask whether the “first sale” doctrine applies to protect a buyer or other lawful owner of a copy (of a copyrighted work) lawfully manufactured abroad. Can that buyer bring that copy into the United States (and sell it or give it away) without obtaining permission to do so from the copyright owner? Can, for example, someone who purchases, say at a used bookstore, a book printed abroad subsequently resell it without the copyright owner’s permission? In our view, the answers to these questions are, yes. We hold that the “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad. I A Respondent, John Wiley & Sons, Inc., publishes aca- demic textbooks. Wiley obtains from its authors various foreign and domestic copyright assignments, licenses and permissions—to the point that we can, for present pur- poses, refer to Wiley as the relevant American copyright owner. See 654 F.3d 210, 213, n. 6 (CA2 2011). Wiley often assigns to its wholly owned foreign subsidiary, John Wiley & Sons (Asia) Pte Ltd., rights to publish, print, and sell Wiley’s English language textbooks abroad. App. to Pet. for Cert. 47a–48a. Each copy of a Wiley Asia foreign edition will likely contain language making clear that the copy is to be sold only in a particular country or geographical region outside the United States. 654 F. 3d, at 213. For example, a copy of Wiley’s American edition says, “Copyright © 2008 John Wiley & Sons, Inc. All rights reserved. . . . Printed in the United States of America.” J. Walker, Fundamentals of Physics, p. vi (8th ed. 2008). A copy of Wiley Asia’s Asian edition of that book says: “Copyright © 2008 John Wiley & Sons (Asia) Pte Ltd[.] All rights reserved. This book is authorized for sale in Europe, Asia, Africa, and the Middle East only and may be not exported out of these territories. Exportation from or importation of this book to another region without the Publisher’s authorization is illegal and is a violation of the Publisher’s rights. The Publisher may take legal action to enforce its rights. . . . Printed in Asia.” J. Walker, Fundamentals of Physics, p. vi (8th ed. 2008 Wiley Int’l Student ed.). Both the foreign and the American copies say: “No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means . . . except as permitted under Sections 107 or 108 of the 1976 United States Copyright Act.” Compare, e.g., ibid. (Int’l ed.), with Walker, supra, at vi (American ed.). The upshot is that there are two essentially equivalent versions of a Wiley textbook, 654 F. 3d, at 213, each version manufactured and sold with Wiley’s permission: (1) an American version printed and sold in the United States, and (2) a foreign version manufactured and sold abroad. And Wiley makes certain that copies of the second version state that they are not to be taken (without permission) into the United States. Ibid. Petitioner, Supap Kirtsaeng, a citizen of Thailand, moved to the United States in 1997 to study mathemat- ics at Cornell University. Ibid. He paid for his educa- tion with the help of a Thai Government scholarship which required him to teach in Thailand for 10 years on his return. Brief for Petitioner 7. Kirtsaeng successfully completed his undergraduate courses at Cornell, successfully completed a Ph. D. program in mathematics at the University of Southern California, and then, as promised, returned to Thailand to teach. Ibid. While he was studying in the United States, Kirtsaeng asked his friends and family in Thailand to buy copies of foreign edition English-language textbooks at Thai book shops, where they sold at low prices, and mail them to him in the United States. Id., at 7–8. Kirtsaeng would then sell them, reimburse his family and friends, and keep the profit. App. to Pet. for Cert. 48a–49a. B In 2008 Wiley brought this federal lawsuit against Kirtsaeng for copyright infringement. 654 F. 3d, at 213. Wiley claimed that Kirtsaeng’s unauthorized importation of its books and his later resale of those books amounted to an infringement of Wiley’s §106(3) exclusive right to dis- tribute as well as §602’s related import prohibition. 17 U. S. C. §§106(3) (2006 ed.), 602(a) (2006 ed., Supp. V). See also §501 (2006 ed.) (authorizing infringement action). App. 204–211. Kirtsaeng replied that the books he had acquired were “ ‘lawfully made’ ” and that he had acquired them legitimately. Record in No. 1:08–CV–7834–DCP (SDNY), Doc. 14, p. 3. Thus, in his view, §109(a)’s “first sale” doctrine permitted him to resell or otherwise dispose of the books without the copyright owner’s further permission. Id., at 2–3. The District Court held that Kirtsaeng could not assert the “first sale” defense because, in its view, that doctrine does not apply to “foreign-manufactured goods” (even if made abroad with the copyright owner’s permission). App. to Pet. for Cert. 72a. The jury then found that Kirtsaeng had willfully infringed Wiley’s American copyrights by selling and importing without authorization copies of eight of Wiley’s copyrighted titles. And it assessed statutory damages of $600,000 ($75,000 per work). 654 F. 3d, at 215. On appeal, a split panel of the Second Circuit agreed with the District Court. Id., at 222. It pointed out that §109(a)’s “first sale” doctrine applies only to “the owner of a particular copy . . . lawfully made under this title.” Id., at 218–219 (emphasis added). And, in the majority’s view, this language means that the “first sale” doctrine does not apply to copies of American copyrighted works manufactured abroad. Id., at 221. A dissenting judge thought that the words “lawfully made under this title” do not refer “to a place of manufacture” but rather “focu[s] on whether a particular copy was manufactured lawfully under” Amer- ica’s copyright statute, and that “the lawfulness of the manufacture of a particular copy should be judged by U. S. copyright law.” Id., at 226 (opinion of Murtha, J.). We granted Kirtsaeng’s petition for certiorari to con- sider this question in light of different views among the Circuits. Compare id., at 221 (case below) (“first sale” doctrine does not apply to copies manufactured outside the United States), with Omega S. A. v. Costco Wholesale Corp., 541 F.3d 982, 986 (CA9 2008) (“first sale” doctrine applies to copies manufactured outside the United States only if an authorized first sale occurs within the United States), aff’d by an equally divided court, 562 U. S. ___ (2010), and Sebastian Int’l, Inc. v. Consumer Contacts (PTY) Ltd., 847 F.2d 1093, 1098, n. 1 (CA3 1988) (limitation of the first sale doctrine to copies made within the United States “does not fit comfortably within the scheme of the Copyright Act”). II We must decide whether the words “lawfully made under this title” restrict the scope of §109(a)’s “first sale” doctrine geographically. The Second Circuit, the Ninth Circuit, Wiley, and the Solicitor General (as amicus) all read those words as imposing a form of geographical limitation. The Second Circuit held that they limit the “first sale” doctrine to particular copies “made in territories in which the Copyright Act is law,” which (the Circuit says) are copies “manufactured domestically,” not “outside of the United States.” 654 F. 3d, at 221–222 (emphasis added). Wiley agrees that those five words limit the “first sale” doctrine “to copies made in conformance with the [United States] Copyright Act where the Copyright Act is appli- cable,” which (Wiley says) means it does not apply to copies made “outside the United States” and at least not to “foreign production of a copy for distribution exclusively abroad.” Brief for Respondent 15–16. Similarly, the Solicitor General says that those five words limit the “first sale” doctrine’s applicability to copies “ ‘made subject to and in compliance with [the Copyright Act],’ ” which (the Solicitor General says) are copies “made in the United States.” Brief for United States as Amicus Curiae 5 (hereinafter Brief for United States) (emphasis added). And the Ninth Circuit has held that those words limit the “first sale” doctrine’s applicability (1) to copies lawfully made in the United States, and (2) to copies lawfully made outside the United States but initially sold in the United States with the copyright owner’s permission. Denbicare U. S. A. Inc. v. Toys “R” Us, Inc., 84 F.3d 1143, 1149–1150 (1996). Under any of these geographical interpretations, §109(a)’s “first sale” doctrine would not apply to the Wiley Asia books at issue here. And, despite an American copyright owner’s permission to make copies abroad, one who buys a copy of any such book or other copyrighted work—whether at a retail store, over the Internet, or at a library sale—could not resell (or otherwise dispose of) that particular copy without further permission. Kirtsaeng, however, reads the words “lawfully made under this title” as imposing a non-geographical limitation. He says that they mean made “in accordance with” or “in compliance with” the Copyright Act. Brief for Petitioner 26. In that case, §109(a)’s “first sale” doctrine would apply to copyrighted works as long as their manufacture met the requirements of American copyright law. In particular, the doctrine would apply where, as here, copies are manufactured abroad with the permission of the copyright owner. See §106 (referring to the owner’s right to authorize). In our view, §109(a)’s language, its context, and the common-law history of the “first sale” doctrine, taken together, favor a non-geographical interpretation. We also doubt that Congress would have intended to create the practical copyright-related harms with which a geographical interpretation would threaten ordinary scholarly, artistic, commercial, and consumer activities. See Part II–D, infra. We consequently conclude that Kirtsaeng’s nongeographical reading is the better reading of the Act. A The language of §109(a) read literally favors Kirtsaeng’s nongeographical interpretation, namely, that “lawfully made under this title” means made “in accordance with” or “in compliance with” the Copyright Act. The language of §109(a) says nothing about geography. The word “under” can mean “[i]n accordance with.” 18 Oxford English Dictionary 950 (2d ed. 1989). See also Black’s Law Dictionary 1525 (6th ed. 1990) (“according to”). And a nongeographical interpretation provides each word of the five-word phrase with a distinct purpose. The first two words of the phrase, “lawfully made,” suggest an effort to distinguish those copies that were made lawfully from those that were not, and the last three words, “under this title,” set forth the standard of “lawful[ness].” Thus, the nongeograph- ical reading is simple, it promotes a traditional copyright objective (combatting piracy), and it makes word-by-word linguistic sense. The geographical interpretation, however, bristles with linguistic difficulties. It gives the word “lawfully” little, if any, linguistic work to do. (How could a book be unlawfully “made under this title”?) It imports geography into a statutory provision that says nothing explicitly about it. And it is far more complex than may at first appear. To read the clause geographically, Wiley, like the Sec- ond Circuit and the Solicitor General, must first emphasize the word “under.” Indeed, Wiley reads “under this title” to mean “in conformance with the Copyright Act where the Copyright Act is applicable.” Brief for Respondent 15. Wiley must then take a second step, arguing that the Act “is applicable” only in the United States. Ibid. And the Solicitor General must do the same. See Brief for United States 6 (“A copy is ‘lawfully made under this title’ if Title 17 governs the copy’s creation and the copy is made in compliance with Title 17’s requirements”). See also post, at 7 (Ginsburg, J., dissenting) (“under” describes something “governed or regulated by another”). One difficulty is that neither “under” nor any other word in the phrase means “where.” See, e.g., 18 Oxford English Dictionary, supra, at 947–952 (definition of “under”). It might mean “subject to,” see post, at 6, but as this Court has repeatedly acknowledged, the word evades a uniform, consistent meaning. See Kucana v. Holder, 558 U.S. 233, 245 (2010) (“ ‘under’ is chameleon”); Ardestani v. INS, 502 U.S. 129, 135 (1991) (“under” has “many dictionary definitions” and “must draw its meaning from its context”). A far more serious difficulty arises out of the uncer- tainty and complexity surrounding the second step’s effort to read the necessary geographical limitation into the word “applicable” (or the equivalent). Where, precisely, is the Copyright Act “applicable”? The Act does not instantly protect an American copyright holder from unauthorized piracy taking place abroad. But that fact does not mean the Act is inapplicable to copies made abroad. As a matter of ordinary English, one can say that a statute imposing, say, a tariff upon “any rhododendron grown in Nepal” applies to all Nepalese rhododendrons. And, similarly, one can say that the American Copyright Act is applicable to all pirated copies, including those printed overseas. Indeed, the Act itself makes clear that (in the Solicitor General’s language) foreign-printed pirated copies are “sub- ject to” the Act. §602(a)(2) (2006 ed., Supp. V) (refer- ring to importation of copies “the making of which either constituted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable”); Brief for United States 5. See also post, at 6 (suggesting that “made under” may be read as “subject to”). The appropriateness of this linguistic usage is underscored by the fact that §104 of the Act itself says that works “subject to protection under this title” include unpublished works “without regard to the nationality or domicile of the author,” and works “first published” in any one of the nearly 180 nations that have signed a copyright treaty with the United States. §§104(a), (b) (2006 ed.) (emphasis added); §101 (2006 ed., Supp. V) (defining “treaty party”); U. S. Copyright Office, Circular No. 38A, International Copyright Relations of the United States (2010). Thus, ordinary English permits us to say that the Act “applies” to an Irish manuscript lying in its author’s Dublin desk drawer as well as to an original recording of a ballet performance first made in Japan and now on display in a Kyoto art gallery. Cf. 4 M. Nimmer & D. Nimmer, Copyright §17.02, pp. 17–18, 17–19 (2012) (herein- after Nimmer on Copyright) (noting that the principle that “copyright laws do not have any extraterritorial operation” “requires some qualification”). The Ninth Circuit’s geographical interpretation pro- duces still greater linguistic difficulty. As we said, that Cir- cuit interprets the “first sale” doctrine to cover both (1) copies manufactured in the United States and (2) copies manufactured abroad but first sold in the United States with the American copyright owner’s permission. Den- bicare U. S. A., 84 F. 3d, at 1149–1150. See also Brief for Respondent 16 (suggesting that the clause at least excludes “the foreign production of a copy for distribution exclusively abroad”); id., at 51 (the Court need “not de- cide whether the copyright owner would be able to restrict further distribution” in the case of “a downstream domestic purchaser of authorized imports”); Brief for Petitioner in Costco Wholesale Corp. v. Omega, S. A., O. T. 2010, No. 08–1423, p. 12 (excepting imported copies “made by unrelated foreign copyright holders” (emphasis deleted)). We can understand why the Ninth Circuit may have thought it necessary to add the second part of its definition. As we shall later describe, see Part II–D, infra, without some such qualification a copyright holder could prevent a buyer from domestically reselling or even giving away copies of a video game made in Japan, a film made in Germany, or a dress (with a design copyright) made in China, even if the copyright holder has granted permission for the foreign manufacture, importation, and an initial domestic sale of the copy. A publisher such as Wiley would be free to print its books abroad, allow their im- portation and sale within the United States, but prohibit students from later selling their used texts at a campus bookstore. We see no way, however, to reconcile this half-geographical/half-nongeographical interpretation with the language of the phrase, “lawfully made under this title.” As a matter of English, it would seem that those five words either do cover copies lawfully made abroad or they do not. In sum, we believe that geographical interpretations create more linguistic problems than they resolve. And considerations of simplicity and coherence tip the purely linguistic balance in Kirtsaeng’s, nongeographical, favor. B Both historical and contemporary statutory context in- dicate that Congress, when writing the present version of §109(a), did not have geography in mind. In respect to history, we compare §109(a)’s present language with the language of its immediate predecessor. That predecessor said: “[N]othing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained.” Copyright Act of 1909, §41, 35Stat. 1084 (emphasis added). See also Copyright Act of 1947, §27, 61Stat. 660. The predecessor says nothing about geography (and Wiley does not argue that it does). So we ask whether Congress, in changing its language implicitly introduced a geograph- ical limitation that previously was lacking. See also Part II–C, infra (discussing 1909 codification of common-law principle). A comparison of language indicates that it did not. The predecessor says that the “first sale” doctrine protects “the transfer of any copy the possession of which has been lawfully obtained.” The present version says that “the owner of a particular copy or phonorecord lawfully made under this title is entitled to sell or otherwise dispose of the possession of that copy or phonorecord.” What does this change in language accomplish? The language of the former version referred to those who are not owners of a copy, but mere possessors who “lawfully obtained” a copy. The present version covers only those who are owners of a “lawfully made” copy. Whom does the change leave out? Who might have law- fully obtained a copy of a copyrighted work but not owned that copy? One answer is owners of movie theaters, who during the 1970’s (and before) often leased films from movie distributors or filmmakers. See S. Donahue, American Film Distribution 134, 177 (1987) (describing producer-distributer and distributer-exhibitor agreements); Note, The Relationship Between Motion Picture Distribution and Exhibition: An Analysis of the Effects of Anti-Blind Bidding Legislation, 9 Comm/Ent. L. J. 131, 135 (1986). Because the theater owners had “lawfully obtained” their copies, the earlier version could be read as allowing them to sell that copy, i.e., it might have given them “first sale” protection. Because the theater owners were lessees, not owners, of their copies, the change in language makes clear that they (like bailees and other lessees) cannot take advantage of the “first sale” doctrine. (Those who find legislative history useful will find confirmation in, e.g., House Committee on the Judiciary, Copyright Law Revision, Supplementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess., pt. 6, p. 30 (Comm. Print 1965) (hereinafter Copyright Law Revision) (“[W]here a person has rented a print of a motion picture from the copyright owner, he would have no right to lend, rent, sell, or otherwise dispose of the print without first obtaining the copyright owner’s permission”). See also Platt & Munk Co. v. Republic Graphics, Inc., 315 F.2d 847, 851 (CA2 1963) (Friendly, J.) (pointing out predecessor statute’s leasing problem)). This objective perfectly well explains the new language of the present version, including the five words here at issue. Section 109(a) now makes clear that a lessee of a copy will not receive “first sale” protection but one who owns a copy will receive “first sale” protection, provided, of course, that the copy was “lawfully made” and not pi- rated. The new language also takes into account that a copy may be “lawfully made under this title” when the copy, say of a phonorecord, comes into its owner’s possession through use of a compulsory license, which “this title” provides for elsewhere, namely, in §115. Again, for those who find legislative history useful, the relevant legislative report makes this clear. H. R. Rep. No. 94–1476, p. 79 (1976) (“For example, any resale of an illegally ‘pirated’ phonorecord would be an infringement, but the disposition of a phonorecord legally made under the compulsory licensing provisions of section 115 would not”). Other provisions of the present statute also support a nongeographical interpretation. For one thing, the stat- ute phases out the “manufacturing clause,” a clause that appeared in earlier statutes and had limited importation of many copies (of copyrighted works) printed outside the United States. §601, 90Stat. 2588 (“Prior to July 1, 1982 . . . the importation into or public distribution in the United States of copies of a work consisting preponderantly of nondramatic literary material . . . is prohibited unless the portions consisting of such material have been manufac- tured in the United States or Canada”). The phasing out of this clause sought to equalize treatment of copies manufactured in America and copies manufactured abroad. See H. R. Rep. No. 94–1476, at 165–166. The “equal treatment” principle, however, is difficult to square with a geographical interpretation of the “first sale” clause that would grant the holder of an American copyright (perhaps a foreign national, see supra, at 10) permanent control over the American distribution chain (sales, resales, gifts, and other distribution) in respect to copies printed abroad but not in respect to copies printed in America. And it is particularly difficult to believe that Congress would have sought this unequal treatment while saying nothing about it and while, in a related clause (the manufacturing phase-out), seeking the opposite kind of policy goal. Cf. Golan v. Holder, 565 U. S. ___, ___ (2012) (slip op., at 30) (Congress has moved from a copyright regime that, prior to 1891, entirely excluded foreign works from U. S. copyright protection to a regime that now “ensure[s] that most works, whether foreign or domestic, would be governed by the same legal regime” (emphasis added)). Finally, we normally presume that the words “lawfully made under this title” carry the same meaning when they appear in different but related sections. Department of Revenue of Ore. v. ACF Industries, Inc., 510 U.S. 332, 342 (1994). But doing so here produces surprising consequences. Consider: (1) Section 109(c) says that, despite the copyright owner’s exclusive right “to display” a copyrighted work (provided in §106(5)), the owner of a particular copy “law- fully made under this title” may publicly display it without further authorization. To interpret these words geographically would mean that one who buys a copyrighted work of art, a poster, or even a bumper sticker, in Canada, in Europe, in Asia, could not display it in America without the copyright owner’s further authorization. (2) Section 109(e) specifically provides that the owner of a particular copy of a copyrighted video arcade game “lawfully made under this title” may “publicly perform or display that game in coin-operated equipment” without the authorization of the copyright owner. To interpret these words geographically means that an arcade owner could not (“without the authority of the copyright owner”) perform or display arcade games (whether new or used) originally made in Japan. Cf. Red Baron-Franklin Park, Inc. v. Taito Corp., 883 F.2d 275 (CA4 1989). (3) Section 110(1) says that a teacher, without the copyright owner’s authorization, is allowed to perform or display a copyrighted work (say, an audiovisual work) “in the course of face-to-face teaching activities”—unless the teacher knowingly used “a copy that was not law- fully made under this title.” To interpret these words geographically would mean that the teacher could not (without further authorization) use a copy of a film during class if the copy was lawfully made in Canada, Mexico, Europe, Africa, or Asia. (4) In its introductory sentence, §106 provides the Act’s basic exclusive rights to an “owner of a copyright under this title.” The last three words cannot support a geographic interpretation. Wiley basically accepts the first three readings, but ar- gues that Congress intended the restrictive consequences. And it argues that context simply requires that the words of the fourth example receive a different interpretation. Leaving the fourth example to the side, we shall explain in Part II–D, infra, why we find it unlikely that Congress would have intended these, and other related consequences. C A relevant canon of statutory interpretation favors a nongeographical reading. “[W]hen a statute covers an is- sue previously governed by the common law,” we must pre- sume that “Congress intended to retain the substance of the common law.” Samantar v. Yousuf, 560 U. S. ___, ___, n. 13 (2010) (slip op., at 14, n. 13). See also Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952) (“Statutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statu- tory purpose to the contrary is evident”). The “first sale” doctrine is a common-law doctrine with an impeccable historic pedigree. In the early 17th century Lord Coke explained the common law’s refusal to permit restraints on the alienation of chattels. Referring to Littleton, who wrote in the 15th century, Gray, Two Contributions to Coke Studies, 72 U. Chi. L. Rev. 1127, 1135 (2005), Lord Coke wrote: “[If] a man be possessed of . . . a horse, or of any other chattell . . . and give or sell his whole interest . . . therein upon condition that the Donee or Vendee shall not alien[ate] the same, the [condition] is voi[d], because his whole interest . . . is out of him, so as he hath no possibilit[y] of a Reverter, and it is against Trade and Traffi[c], and bargaining and contracting betwee[n] man and man: and it is within the reason of our Author that it should ouster him of all power given to him.” 1 E. Coke, Institutes of the Laws of England §360, p. 223 (1628). A law that permits a copyright holder to control the resale or other disposition of a chattel once sold is simi- larly “against Trade and Traffi[c], and bargaining and con- tracting.” Ibid. With these last few words, Coke emphasizes the importance of leaving buyers of goods free to compete with each other when reselling or otherwise disposing of those goods. American law too has generally thought that competition, including freedom to resell, can work to the advantage of the consumer. See, e.g., Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 886 (2007) (restraints with “manifestly anticompetitive effects” are per se illegal; others are subject to the rule of reason (internal quotation marks omitted)); 1 P. Areeda & H. Hovenkamp, Antitrust Law ¶100, p. 4 (3d ed. 2006) (“[T]he principal objective of antitrust policy is to maximize consumer welfare by encouraging firms to behave competitively”). The “first sale” doctrine also frees courts from the administrative burden of trying to enforce restrictions upon difficult-to-trace, readily movable goods. And it avoids the selective enforcement inherent in any such effort. Thus, it is not surprising that for at least a century the “first sale” doctrine has played an important role in American copyright law. See Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908); Copyright Act of 1909, §41, 35Stat. 1084. See also Copyright Law Revision, Further Discussions and Comments on Preliminary Draft for Revised U. S. Copyright Law, 88th Cong., 2d Sess., pt. 4, p. 212 (Comm. Print 1964) (Irwin Karp of Authors’ League of America expressing concern for “the very basic concept of copyright law that, once you’ve sold a copy legally, you can’t restrict its resale”). The common-law doctrine makes no geographical distinctions; nor can we find any in Bobbs-Merrill (where this Court first applied the “first sale” doctrine) or in §109(a)’s predecessor provision, which Congress enacted a year later. See supra, at 12. Rather, as the Solicitor General acknowledges, “a straightforward application of Bobbs-Merrill” would not preclude the “first sale” defense from applying to authorized copies made overseas. Brief for United States 27. And we can find no language, context, purpose, or history that would rebut a “straightforward application” of that doctrine here. The dissent argues that another principle of statutory interpretation works against our reading, and points out that elsewhere in the statute Congress used different words to express something like the non-geographical reading we adopt. Post, at 8–9 (quoting §602(a)(2) (prohibiting the importation of copies “the making of which either constituted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable” (emphasis deleted))). Hence, Congress, the dissent believes, must have meant §109(a)’s different language to mean something different (such as the dissent’s own geographical interpretation of §109(a)). We are not aware, however, of any canon of interpretation that forbids interpreting different words used in different parts of the same statute to mean roughly the same thing. Regardless, were there such a canon, the dissent’s interpretation of §109(a) would also violate it. That is because Congress elsewhere in the 1976 Act included the words “manufactured in the United States or Canada,” 90Stat. 2588, which express just about the same geographical thought that the dissent reads into §109(a)’s very different language. D Associations of libraries, used-book dealers, technology companies, consumer-goods retailers, and museums point to various ways in which a geographical interpretation would fail to further basic constitutional copyright objectives, in particular “promot[ing] the Progress of Science and useful Arts.” U. S. Const., Art. I, §8, cl. 8. The American Library Association tells us that library collections contain at least 200 million books published abroad (presumably, many were first published in one of the nearly 180 copyright-treaty nations and enjoy American copyright protection under 17 U. S. C. §104, see supra, at 10); that many others were first published in the United States but printed abroad because of lower costs; and that a geographical interpretation will likely require the li- braries to obtain permission (or at least create significant uncertainty) before circulating or otherwise distributing these books. Brief for American Library Association et al. as Amici Curiae 4, 15–20. Cf. id., at 16–20, 28 (discussing limitations of potential defenses, including the fair use and archival exceptions, §§107–108). See also Library and Book Trade Almanac 511 (D. Bogart ed., 55th ed. 2010) (during 2000–2009 “a significant amount of book printing moved to foreign nations”). How, the American Library Association asks, are the libraries to obtain permission to distribute these millions of books? How can they find, say, the copyright owner of a foreign book, perhaps written decades ago? They may not know the copyright holder’s present address. Brief for American Library Association 15 (many books lack indication of place of manufacture; “no practical way to learn where [a] book was printed”). And, even where addresses can be found, the costs of finding them, contacting owners, and negotiating may be high indeed. Are the libraries to stop circulating or distributing or displaying the millions of books in their collections that were printed abroad? Used-book dealers tell us that, from the time when Benjamin Franklin and Thomas Jefferson built commercial and personal libraries of foreign books, American readers have bought used books published and printed abroad. Brief for Powell’s Books Inc. et al. as Amici Curiae 7 (citing M. Stern, Antiquarian Bookselling in the United States (1985)). The dealers say that they have “operat[ed] . . . for centuries” under the assumption that the “first sale” doctrine applies. Brief for Powell’s Books 7. But under a geographical interpretation a contemporary tourist who buys, say, at Shakespeare and Co. (in Paris), a dozen copies of a foreign book for American friends might find that she had violated the copyright law. The used-book dealers cannot easily predict what the foreign copyright holder may think about a reader’s effort to sell a used copy of a novel. And they believe that a geographical interpretation will injure a large portion of the used-book business. Technology companies tell us that “automobiles, microwaves, calculators, mobile phones, tablets, and personal computers” contain copyrightable software programs or packaging. Brief for Public Knowledge et al. as Amici Curiae 10. See also Brief for Association of Service and Computer Dealers International, Inc., et al. as Amici Curiae 2. Many of these items are made abroad with the American copyright holder’s permission and then sold and imported (with that permission) to the United States. Brief for Retail Litigation Center, Inc., et al. as Amici Curiae 4. A geographical interpretation would prevent the resale of, say, a car, without the permission of the holder of each copyright on each piece of copyrighted automobile software. Yet there is no reason to believe that foreign auto manufacturers regularly obtain this kind of permission from their software component suppliers, and Wiley did not indicate to the contrary when asked. See Tr. of Oral Arg. 29–30. Without that permission a foreign car owner could not sell his or her used car. Retailers tell us that over $2.3 trillion worth of for- eign goods were imported in 2011. Brief for Retail Litigation Center 8. American retailers buy many of these goods after a first sale abroad. Id., at 12. And, many of these items bear, carry, or contain copyrighted “packaging, logos, labels, and product inserts and instructions for [the use of] everyday packaged goods from floor cleaners and health and beauty products to breakfast cereals.” Id., at 10–11. The retailers add that American sales of more traditional copyrighted works, “such as books, recorded music, motion pictures, and magazines” likely amount to over $220 billion. Id., at 9. See also id., at 10 (electronic game industry is $16 billion). A geographical interpretation would subject many, if not all, of them to the disruptive impact of the threat of infringement suits. Id., at 12. Art museum directors ask us to consider their efforts to display foreign-produced works by, say, Cy Twombly, René Magritte, Henri Matisse, Pablo Picasso, and others. See supra, at 10 (describing how §104 often makes such works “subject to” American copyright protection). A geographical interpretation, they say, would require the museums to obtain permission from the copyright owners before they could display the work, see supra, at 15—even if the copyright owner has already sold or donated the work to a foreign museum. Brief for Association of Art Museum Directors et al. as Amici Curiae 10–11. What are the museums to do, they ask, if the artist retained the copyright, if the artist cannot be found, or if a group of heirs is arguing about who owns which copyright? Id., at 14. These examples, and others previously mentioned, help explain why Lord Coke considered the “first sale” doctrine necessary to protect “Trade and Traffi[c], and bargaining and contracting,” and they help explain why American copyright law has long applied that doctrine. Cf. supra, at 17–18. Neither Wiley nor any of its many amici deny that a geographical interpretation could bring about these “horribles”—at least in principle. Rather, Wiley essentially says that the list is artificially invented. Brief for Respondent 51–52. It points out that a federal court first adopted a geographical interpretation more than 30 years ago. CBS, Inc. v. Scorpio Music Distributors, Inc., 569 F. Supp. 47, 49 (ED Pa. 1983), summarily aff’d, 738 F.2d 424 (CA3 1984) (table). Yet, it adds, these problems have not occurred. Why not? Because, says Wiley, the problems and threats are purely theoretical; they are unlikely to reflect reality. See also post, at 30–31. We are less sanguine. For one thing, the law has not been settled for long in Wiley’s favor. The Second Circuit, in its decision below, is the first Court of Appeals to adopt a purely geographical interpretation. The Third Circuit has favored a nongeographical interpretation. Sebastian Int’l, 847 F.2d 1093. The Ninth Circuit has favored a modified geographical interpretation with a nongeographical (but textually unsustainable) corollary designed to diminish the problem. Denbicare U. S. A., 84 F.3d 1143. See supra, at 11–12. And other courts have hesitated to adopt, and have cast doubt upon, the validity of the geographical interpretation. Pearson Educ., Inc. v. Liu, 656 F. Supp. 2d 407 (SDNY 2009); Red-Baron Franklin Park, Inc. v. Taito Corp., No. 88–0156–A, 1988 WL 167344, *3 (ED Va. 1988), rev’d on other grounds, 883 F.2d 275 (CA4 1989). For another thing, reliance upon the “first sale” doctrine is deeply embedded in the practices of those, such as book- sellers, libraries, museums, and retailers, who have long relied upon its protection. Museums, for example, are not in the habit of asking their foreign counterparts to check with the heirs of copyright owners before sending, e.g., a Picasso on tour. Brief for Association of Art Mu- seum Directors 11–12. That inertia means a dramatic change is likely necessary before these institutions, instructed by their counsel, would begin to engage in the complex permission-verifying process that a geographical interpretation would demand. And this Court’s adoption of the geographical interpretation could provide that dramatic change. These intolerable consequences (along with the absurd result that the copyright owner can ex- ercise downstream control even when it authorized the import or first sale) have understandably led the Ninth Circuit, the Solicitor General as amicus, and the dissent to adopt textual readings of the statute that attempt to mitigate these harms. Brief for United States 27–28; post, at 24–28. But those readings are not defensible, for they require too many unprecedented jumps over linguistic and other hurdles that in our view are insurmountable. See, e.g., post, at 26 (acknowledging that its reading of §106(3) “significantly curtails the independent effect of §109(a)”). Finally, the fact that harm has proved limited so far may simply reflect the reluctance of copyright holders so far to assert geographically based resale rights. They may decide differently if the law is clarified in their favor. Regardless, a copyright law that can work in practice only if unenforced is not a sound copyright law. It is a law that would create uncertainty, would bring about selective enforcement, and, if widely unenforced, would breed disrespect for copyright law itself. Thus, we believe that the practical problems that petitioner and his amici have described are too serious, too extensive, and too likely to come about for us to dismiss them as insignificant—particularly in light of the ever-growing importance of foreign trade to America. See The World Bank, Imports of goods and services (% of GDP) (imports in 2011 18% of U. S. gross domestic product compared to 11% in 1980), online at http:// data.worldbank.org/indicator/NE.IMP.GNFS.ZS? (as visited Mar. 15, 2013, and available in Clerk of Court’s case file). The upshot is that copyright-related consequences along with language, context, and interpretive canons argue strongly against a geographical interpretation of §109(a). III Wiley and the dissent make several additional impor- tant arguments in favor of the geographical interpretation. First, they say that our Quality King decision strongly supports its geographical interpretation. In that case we asked whether the Act’s “importation provision,” now §602(a)(1) (then §602(a)), barred importation (without permission) of a copyrighted item (labels affixed to hair care products) where an American copyright owner authorized the first sale and export of hair care products with copyrighted labels made in the United States, and where a buyer sought to import them back into the United States without the copyright owner’s permission. 523 U. S., at 138–139. We held that the importation provision did not prohibit sending the products back into the United States (without the copyright owner’s permission). That section says: “Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phono-records under section 106.” 17 U. S. C. §602(a)(1) (2006 ed., Supp. V) (emphasis added). See also §602(a) (1994 ed.). We pointed out that this section makes importation an infringement of the “exclusive right to distribute . . . under 106.” We noted that §109(a)’s “first sale” doctrine limits the scope of the §106 exclusive distribution right. We took as given the fact that the products at issue had at least once been sold. And we held that consequently, importation of the copyrighted labels does not violate §602(a)(1). 523 U. S., at 145. In reaching this conclusion we endorsed Bobbs-Merrill and its statement that the copyright laws were not “intended to create a right which would permit the holder of the copyright to fasten, by notice in a book . . . a restriction upon the subsequent alienation of the subject-matter of copyright after the owner had parted with the title to one who had acquired full dominion over it.” 210 U. S., at 349–350. We also explained why we rejected the claim that our interpretation would make §602(a)(1) pointless. Those advancing that claim had pointed out that the 1976 Copyright Act amendments retained a prior anti-piracy provision, prohibiting the importation of pirated copies. Qual- ity King, supra, at 146. Thus, they said, §602(a)(1) must prohibit the importation of lawfully made copies, for to allow the importation of those lawfully made copies after a first sale, as Quality King’s holding would do, would leave §602(a)(1) without much to prohibit. It would become superfluous, without any real work to do. We do not believe that this argument is a strong one. Under Quality King’s interpretation, §602(a)(1) would still forbid importing (without permission, and subject to the exceptions in §602(a)(3)) copies lawfully made abroad, for example, where (1) a foreign publisher operating as the licensee of an American publisher prints copies of a book overseas but, prior to any authorized sale, seeks to send them to the United States; (2) a foreign printer or other manufacturer (if not the “owner” for purposes of §109(a), e.g., before an authorized sale) sought to send copyrighted goods to the United States; (3) “a book publisher transports copies to a wholesaler” and the wholesaler (not yet the owner) sends them to the United States, see Copyright Law Revision, pt. 4, at 211 (giving this example); or (4) a foreign film distributor, having leased films for distri- bution, or any other licensee, consignee, or bailee sought to send them to the United States. See, e.g., 2 Nimmer on Copyright §8.12[B][1][a], at 8–159 (“Section 109(a) provides that the distribution right may be exercised solely with respect to the initial disposition of copies of a work, not to prevent or restrict the resale or other further transfer of possession of such copies”). These examples show that §602(a)(1) retains significance. We concede it has less significance than the dissent believes appropriate, but the dissent also adopts a construction of §106(3) that “significantly curtails” §109(a)’s effect, post, at 26, and so limits the scope of that provision to a similar, or even greater, degree. In Quality King we rejected the “superfluous” argument for similar reasons. But, when rejecting it, we said that, where an author gives exclusive American distribution rights to an American publisher and exclusive British distribution rights to a British publisher, “presumably only those [copies] made by the publisher of the United States edition would be ‘lawfully made under this title’ within the meaning of §109(a).” 523 U. S., at 148 (emphasis added). Wiley now argues that this phrase in the Quality King opinion means that books published abroad (under license) must fall outside the words “lawfully made under this title” and that we have consequently already given those words the geographical interpretation that it favors. We cannot, however, give the Quality King statement the legal weight for which Wiley argues. The language “lawfully made under this title” was not at issue in Qual- ity King; the point before us now was not then fully argued; we did not canvas the considerations we have here set forth; we there said nothing to suggest that the example assumes a “first sale”; and we there hedged our state- ment with the word “presumably.” Most importantly, the statement is pure dictum. It is dictum contained in a rebuttal to a counterargument. And it is unnecessary dictum even in that respect. Is the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after? To the contrary, we have written that we are not necessarily bound by dicta should more complete argument demonstrate that the dicta is not correct. Central Va. Community College v. Katz, 546 U.S. 356, 363 (2006) (“[W]e are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated”); Humphrey’s Executor v. United States, 295 U.S. 602, 627–628 (1935) (rejecting, under stare decisis, dicta, “which may be followed if sufficiently persuasive but which are not controlling”). And, given the bit part that our Quality King statement played in our Quality King decision, we believe the view of stare decisis set forth in these opinions applies to the matter now before us. Second, Wiley and the dissent argue (to those who consider legislative history) that the Act’s legislative history supports their interpretation. But the historical events to which it points took place more than a decade before the enactment of the Act and, at best, are inconclusive. During the 1960’s, representatives of book, record, and film industries, meeting with the Register of Copyrights to discuss copyright revision, complained about the difficulty of dividing international markets. Copyright Law Revision Discussion and Comments on Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law, 88th Cong., 1st Sess., pt. 2, p. 212 (Comm. Print 1963) (English editions of “particular” books “fin[d]” their “way into this country”); id., at 213 (works “publi[shed] in a country where there is no copyright protection of any sort” are put into “the free stream of commerce” and “shipped to the United States”); ibid. (similar concern in respect to films). The then-Register of Copyrights, Abraham Kaminstein, found these examples “very troubl[ing].” Ibid. And the Copyright Office released a draft provision that it said “deals with the matter of the importation for distribution in the United States of foreign copies that were made under proper authority but that, if sold in the United States, would be sold in contravention of the rights of the copyright owner who holds the exclusive right to sell copies in the United States.” Id., pt. 4, at 203. That draft version, without reference to §106, simply forbids unauthorized imports. It said: “Importation into the United States of copies or records of a work for the purpose of distribution to the public shall, if such articles are imported without the authority of the owner of the exclusive right to distrib- ute copies or records under this title, constitute an infringement of copyright actionable under section 35 [ 17 U. S. C. §501].” Id., Preliminary Draft for Revised U. S. Copyright Law and Discussions and Comments, 88th Cong., 2d Sess., pt. 3, pp. 32–33 (Comm. Print 1964). In discussing the draft, some of those present expressed concern about its effect on the “first sale” doctrine. For example, Irwin Karp, representing the Authors League of America asked, “If a German jobber lawfully buys cop- ies from a German publisher, are we not running into the problem of restricting his transfer of his lawfully obtained copies?” Id., pt. 4, at 211. The Copyright Office representative replied, “This could vary from one situation to another, I guess. I should guess, for example, that if a book publisher transports [i.e., does not sell] copies to a wholesaler [i.e., a nonowner], this is not yet the kind of transaction that exhausts the right to control disposition.” Ibid. (emphasis added). The Office later withdrew the draft, replacing it with a draft, which, by explicitly referring to §106, was similar to the provision that became law, now §602(a)(1). The Office noted in a report that, under the new draft, importation of a copy (without permission) “would violate the exclusive rights of the U. S. copyright owner . . . where the copyright owner had authorized the making of copies in a foreign country for distribution only in that country.” Id., pt. 6, at 150. Still, that part of the report says nothing about the “first sale” doctrine, about §109(a), or about the five words, “lawfully made under this title.” And neither the report nor its accompanying 1960’s draft answers the question before us here. Cf. Quality King, 523 U. S., at 145 (without those five words, the import clause, via its reference to §106, imports the “first sale” doctrine). But to ascertain the best reading of §109(a), rather than dissecting the remarks of industry representatives concerning §602 at congressional meetings held 10 years before the statute was enacted, see post, at 13–16, we would give greater weight to the congressional report accompanying §109(a), written a decade later when Congress passed the new law. That report says: “Section 109(a) restates and confirms the principle that, where the copyright owner has transferred ownership of a particular copy or phonorecord of a work, the person to whom the copy or phonorecord is transferred is entitled to dispose of it by sale, rental, or any other means. Under this principle, which has been established by the court decisions and . . . the present law, the copyright owner’s exclusive right of public distribution would have no effect upon anyone who owns ‘a particular copy or phonorecord lawfully made under this title’ and who wishes to transfer it to someone else or to destroy it. . . . . . “To come within the scope of section 109(a), a copy or phonorecord must have been ‘lawfully made under this title,’ though not necessarily with the copyright owner’s authorization. For example, any resale of an illegally ‘pirated’ phonorecord would be an infringement but the disposition of a phonorecord legally made under the compulsory licensing provisions of section 115 would not.” H. R. Rep. No. 94–1476, at 79 (emphasis added). Accord, S. Rep. No. 94–473, pp. 71–72 (1975). This history reiterates the importance of the “first sale” doctrine. See, e.g., Copyright Law Revision, 1964 Revision Bill with Discussions and Comments, 89th Cong., 1st Sess., pt. 5, p. 66 (Comm. Print 1965) (“[F]ull ownership of a lawfully-made copy authorizes its owner to dispose of it freely”). It explains, as we have explained, the nongeographical purposes of the words “lawfully made under this title.” Part II–B, supra. And it says nothing about geography. Nor, importantly, did §109(a)’s predecessor provision. See supra, at 12. This means that, contrary to the dissent’s suggestion, any lack of legislative history pertaining to the “first sale” doctrine only tends to bolster our position that Congress’ 1976 revision did not intend to create a drastic geographical change in its revision to that provision. See post, at 18, n. 13. We consequently believe that the legislative history, on balance, supports the non- geographical interpretation. Third, Wiley and the dissent claim that a nongeographical interpretation will make it difficult, perhaps impos- sible, for publishers (and other copyright holders) to divide foreign and domestic markets. We concede that is so. A publisher may find it more difficult to charge different prices for the same book in different geographic markets. But we do not see how these facts help Wiley, for we can find no basic principle of copyright law that suggests that publishers are especially entitled to such rights. The Constitution describes the nature of American copyright law by providing Congress with the power to “secur[e]” to “[a]uthors” “for limited [t]imes” the “exclusive [r]ight to their . . . [w]ritings.” Art. I, §8, cl. 8. The Founders, too, discussed the need to grant an author a limited right to exclude competition. Compare Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 Papers of Thomas Jefferson 440, 442–443 (J. Boyd ed. 1956) (arguing against any monopoly) with Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 14 id., at 16, 21 (J. Boyd ed. 1958) (arguing for a limited monopoly to secure production). But the Constitution’s language nowhere suggests that its limited exclusive right should include a right to divide markets or a concomitant right to charge different purchasers different prices for the same book, say to increase or to maximize gain. Neither, to our knowledge, did any Founder make any such suggestion. We have found no precedent suggesting a legal preference for interpretations of copyright statutes that would provide for market divisions. Cf. Copyright Law Revision, pt. 2, at 194 (statement of Barbara Ringer, Copyright Office) (division of territorial markets was “primarily a matter of private contract”). To the contrary, Congress enacted a copyright law that (through the “first sale” doctrine) limits copyright holders’ ability to divide domestic markets. And that limitation is consistent with antitrust laws that ordinarily forbid market divisions. Cf. Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49–50 (1990) (per curiam) (“[A]greements between competitors to allocate territories to minimize competition are illegal”). Whether copyright owners should, or should not, have more than ordinary commercial power to divide international markets is a matter for Congress to decide. We do no more here than try to determine what decision Congress has taken. Fourth, the dissent and Wiley contend that our decision launches United States copyright law into an unprecedented regime of “international exhaustion.” Post, at 18–23; Brief for Respondent 45–46. But they point to nothing indicative of congressional intent in 1976. The dissent also claims that it is clear that the United States now opposes adopting such a regime, but the Solicitor General as amicus has taken no such position in this case. In fact, when pressed at oral argument, the Solicitor General stated that the consequences of Wiley’s reading of the statute (perpetual downstream control) were “worse” than those of Kirtsaeng’s reading (restriction of market segmentation). Tr. of Oral Arg. 51. And the dissent’s reliance on the Solicitor General’s position in Quality King is under- mined by his agreement in that case with our reading of §109(a). Brief for United States as Amicus Curiae in Quality King, O. T. 1996, No. 1470, p. 30 (“When . . . Congress wishes to make the location of manufacture relevant to Copyright Act protection, it does so expressly”); ibid. (calling it “distinctly unlikely” that Congress would have provided an incentive for overseas manufacturing). Moreover, the exhaustion regime the dissent apparently favors would provide that “the sale in one country of a good” does not “exhaus[t] the intellectual-property owner’s right to control the distribution of that good elsewhere.” Post, at 18–19. But our holding in Quality King that §109(a) is a defense in U. S. courts even when “the first sale occurred abroad,” 523 U. S., at 145, n. 14, has already significantly eroded such a principle. IV For these reasons we conclude that the considerations supporting Kirtsaeng’s nongeographical interpretation of the words “lawfully made under this title” are the more persuasive. 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.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus KIRTSAENG, dba BLUECHRISTINE99 v. JOHN WILEY & SONS, INC. certiorari to the united states court of appeals for the second circuit No. 11–697. Argued October 29, 2012—Decided March 19, 2013 The “exclusive rights” that a copyright owner has “to distribute copies . . . of [a] copyrighted work,” 17 U. S. C. §106(3), are qualified by the application of several limitations set out in §§107 through 122, including the “first sale” doctrine, which provides that “the owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord,” §109(a). Importing a copy made abroad without the copyright owner’s permission is an infringement of §106(3). See §602(a)(1). In Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U.S. 135, 145, this Court held that §602(a)(1)’s reference to §106(3) incorporates the §§107 through 122 limitations, including §109’s “first sale” doctrine. However, the copy in Quality King was initially manufactured in the United States and then sent abroad and sold. Respondent, John Wiley & Sons, Inc., an academic textbook publisher, often assigns to its wholly owned foreign subsidiary (Wiley Asia) rights to publish, print, and sell foreign editions of Wiley’s English language textbooks abroad. Wiley Asia’s books state that they are not to be taken (without permission) into the United States. When petitioner Kirtsaeng moved from Thailand to the United States to study mathematics, he asked friends and family to buy foreign edition English-language textbooks in Thai book shops, where they sold at low prices, and to mail them to him in the United States. He then sold the books, reimbursed his family and friends, and kept the profit. Wiley filed suit, claiming that Kirtsaeng’s unauthorized importation and resale of its books was an infringement of Wiley’s §106(3) exclusive right to distribute and §602’s import prohibition. Kirtsaeng replied that because his books were “lawfully made” and acquired legitimately, §109(a)’s “first sale” doctrine permitted importation and resale without Wiley’s further permission. The District Court held that Kirtsaeng could not assert this defense because the doctrine does not apply to goods manufactured abroad. The jury then found that Kirtsaeng had willfully infringed Wiley’s American copyrights and assessed damages. The Second Circuit affirmed, concluding that §109(a)’s “lawfully made under this title” language indicated that the “first sale” doctrine does not apply to copies of American copyrighted works manufactured abroad. Held: The “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad. . (a) Wiley reads “lawfully made under this title” to impose a geographical limitation that prevents §109(a)’s doctrine from applying to Wiley Asia’s books. Kirtsaeng, however, reads the phrase as imposing the non-geographical limitation made “in accordance with” or “in compliance with” the Copyright Act, which would permit the doctrine to apply to copies manufactured abroad with the copyright owner’s permission. . (b) Section 109(a)’s language, its context, and the “first sale” doctrine’s common-law history favor Kirtsaeng’s reading. . (1) Section 109(a) says nothing about geography. “Under” can logically mean “in accordance with.” And a nongeographical interpretation provides each word in the phrase “lawfully made under this title” with a distinct purpose: “lawfully made” suggests an effort to distinguish copies that were made lawfully from those that were not, and “under this title” sets forth the standard of “lawful[ness]” (i.e., the U. S. Copyright Act). This simple reading promotes the traditional copyright objective of combatting piracy and makes word-by-word linguistic sense. In contrast, the geographical interpretation bristles with linguistic difficulties. Wiley first reads “under” to mean “in conformance with the Copyright Act where the Copyright Act is applicable.” Wiley then argues that the Act “is applicable” only in the United States. However, neither “under” nor any other word in “lawfully made under this title” means “where.” Nor can a geographical limitation be read into the word “applicable.” The fact that the Act does not instantly protect an American copyright holder from unauthorized piracy taking place abroad does not mean the Act is inapplicable to copies made abroad. Indeed, §602(a)(2) makes foreign-printed pirated copies subject to the Copyright Act. And §104 says that works “subject to protection” include unpublished works “without regard to the [author’s] nationality or domicile,” and works “first published” in any of the nearly 180 nations that have signed a copyright treaty with the United States. . (2) Both historical and contemporary statutory context indicate that Congress did not have geography in mind when writing the present version of §109(a). A comparison of the language in §109(a)’s predecessor and the present provision supports this conclusion. The former version referred to those who are not owners of a copy, but mere possessors who “lawfully obtained” a copy, while the present version covers only owners of a “lawfully made” copy. This new language, including the five words at issue, makes clear that a lessee of a copy will not receive “first sale” protection but one who owns a copy will be protected, provided that the copy was “lawfully made.” A nongeographical interpretation is also supported by other provisions of the present statute. For example, the “manufacturing clause,” which limited importation of many copies printed outside the United States, was phased out in an effort to equalize treatment of copies made in America and copies made abroad. But that “equal treatment” principle is difficult to square with a geographical interpretation that would grant an American copyright holder permanent control over the American distribution chain in respect to copies printed abroad but not those printed in America. Finally, the Court normally presumes that the words “lawfully made under this title” carry the same meaning when they appear in different but related sections, and it is unlikely that Congress would have intended the consequences produced by a geographical interpretation. . (3) A nongeographical reading is also supported by the canon of statutory interpretation that “when a statute covers an issue previously governed by the common law,” it is presumed that “Congress intended to retain the substance of the common law.” Samantar v. Yousuf, 560 U. S. ___, ___. The common-law “first sale” doctrine, which has an impeccable historic pedigree, makes no geographical distinctions. Nor can such distinctions be found in Bobbs-Merrill Co. v. Straus, 210 U.S. 339, where this Court first applied the “first sale” doctrine, or in §109(a)’s predecessor provision, which Congress enacted a year later. . (4) Library associations, used-book dealers, technology companies, consumer-goods retailers, and museums point to various ways in which a geographical interpretation would fail to further basic constitutional copyright objectives, in particular “promot[ing] the Progress of Science and useful Arts,” Art. I, §8, cl. 8. For example, a geographical interpretation of the first-sale doctrine would likely require libraries to obtain permission before circulating the many books in their collections that were printed overseas. Wiley counters that such problems have not occurred in the 30 years since a federal court first adopted a geographical interpretation. But the law has not been settled for so long in Wiley’s favor. The Second Circuit in this case was the first Court of Appeals to adopt a purely geographical interpretation. Reliance on the “first sale” doctrine is also deeply embedded in the practices of booksellers, libraries, museums, and retailers, who have long relied on its protection. And the fact that harm has proved limited so far may simply reflect the reluctance of copyright holders to assert geographically based resale rights. Thus, the practical problems described by petitioner and his amici are too serious, extensive, and likely to come about to be dismissed as insignificant—particularly in light of the ever-growing importance of foreign trade to America. . (c) Several additional arguments that Wiley and the dissent make in support of a geographical interpretation are unpersuasive. . 654 F.3d 210, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Sotomayor, and Kagan, JJ., joined. Kagan, J., filed a concurring opinion, in which Alito, J., joined. Ginsburg, J., filed a dissenting opinion, in which Kennedy, J., joined, and in which Scalia, J., joined except as to Parts III and V–B–1.

Title 17 U.S. C. §106(3) grants the owner of copyright under this title certain rights, including the right to distribute copies of the copyrighted work to the public by sale or other transfer of ownership. These rights are qualified by the application of various limitations set forth in the next several sections of the Copyright Act, §§107 through 122, which generally entitle the owner to certain exclusive rights. However, §109(a) provides that, once a copy of a copyrighted work has been lawfully sold (or its ownership otherwise lawfully transferred), the buyer of that copy and subsequent owners are free to dispose of it as they wish. Petitioner, a citizen of Thailand, moved to the United States in 1997 to study mathematics at Cornell University. He paid for his educa tion with the help of a Thai Government scholarship which required him to teach in Thailand for 10 years on his return. While he was studying in Thailand, he asked his friends and family in Thailand to buy copies of foreign edition English-language textbooks at Thai book shops, where they sold at low prices, and mail them to him in order to keep the profit. Petitioner would then sell them, reimburse his family and friends, and keep the profits. Respondent then brought suit against petitioner for copyright infringement. The District Court held that petitioner had willfully infringed Wiley's American copyrights by selling and importing without authorization copies of eight of Wiley's copyrighted titles, and assessed statutory damages. The Court of Appeals agreed with the District Court, holding that petitioner could not assert the defense of the first sale doctrine because that doctrine does not apply to copies of American copyrighted works manufactured abroad with the copyright owner's permission. Held: 1. The words "lawfully made under... this title restrict the scope of §109 (a) doctrine geographically. The language of the statute says nothing about geography, but simply refers to those who are not owners of a copy, but mere possessors who may lawfully make a copy. And a nongeographical interpretation provides each word of the five-word phrase with a distinct purpose. . 2. The word in question is pure dictum. It is dictum contained in a rebuttal to a counterargument. And it is unnecessary dictum even in that respect. Cf. Qual- ity King Distributors, Inc. v. L'anza Research Int'l, Inc., 523 U. S. 135, 654 F. 3d 210, n. 6 (CA2), which held that a copyright owner has the exclusive right of public distribution of copies of a work lawfully made abroad, and that, therefore, a copy is lawfully made under the title in question in this case, regardless of whether the owner has lawfully made the copy abroad or lawfully made it abroad. Pp. 462 U. s. 135-139. 3. The history of the copyright law indicates that Congress, when writing the present version, did not have geography in mind. The Constitution describes the nature of American copyright law by providing Congress with the power tosecur[e] to prevent infringement of the exclusive rights of copyright owners, but nowhere suggests that its limited exclusive right should include a right to divide markets or a concomitant right to charge different purchasers different prices for the same book, say to increase or to maximize gain. And reliance upon the common-law doctrine is deeply embedded in the practices of those, such as book sellers, libraries, museums, and retailers, who have long relied upon its protection. Moreover, a reading of the words in question would leave many of those words inapplicable to copies made abroad without the owner's consent, and would subject many, if not all, of them to the disruptive impact of the threat of infringement suits.. 4. The considerations supporting petitioner and his amici are the more persuasive. A comparison of language indicates that the language in question does not restrict the section geographically. The section speaks literally, since it says that the word, which says that it means lawfully made, means made "in accordance with" or "in compliance with" the Copyright Act. And the section makes clear that it does not authorize the importation of copies made lawfully made in foreign countries, but only copies made in conformance with the Act where the Copyright is applicable. In addition, the section interprets the "first sale" doctrine to cover both copies manufactured in the United States and copies manufactured abroad but first sold in the United States with the American copyright owner. This reading is not supported by any canon of interpretation that forbids interpreting different words used in different parts of the same statute to mean roughly the same thing. Furthermore, a geographical interpretation would fail to further basic constitutional copyright objectives, in particular,promot[ing] the Progress of Science and useful Arts... 5. The legislative history does not support the conclusion that the section launches United States copyright law into an unprecedented regime of international exhaustion.

2012_11-184

https://www.oyez.org/cases/2012/11-184

. A federal employee subjected to an adverse personnel action such as a discharge or demotion may appeal her agency’s decision to the Merit Systems Protection Board (MSPB or Board). See 5 U. S. C. §§7512, 7701. In that challenge, the employee may claim, among other things, that the agency discriminated against her in violation of a federal statute. See §7702(a)(1). The question presented in this case arises when the MSPB dismisses an appeal alleging discrimination not on the merits, but on procedural grounds. Should an employee seeking judicial review then file a petition in the Court of Appeals for the Federal Circuit, or instead bring a suit in district court under the applicable antidiscrimination law? We hold she should go to district court. I A The Civil Service Reform Act of 1978 (CSRA), 5 U. S. C. §1101 et seq., establishes a framework for evaluating per- sonnel actions taken against federal employees. That statutory framework provides graduated procedural protections depending on an action’s severity. If (but only if) the action is particularly serious—involving, for example, a removal from employment or a reduction in grade or pay—the affected employee has a right to appeal the agency’s decision to the MSPB, an independent adjudicator of federal employment disputes.[1] See §§1204, 7512, 7701. Such an appeal may merely allege that the agency had insufficient cause for taking the action under the CSRA; but the appeal may also or instead charge the agency with discrimination prohibited by another federal statute, such as Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., or the Age Discrimination in Employment Act of 1967, 29 U. S. C. §621 et seq. See 5 U. S. C. §7702(a)(1). When an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a “mixed case.” See 29 CFR §1614.302 (2012). The CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special procedures to govern such a case—different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as discriminatory. See 5 U. S. C. §§7702, 7703(b)(2) (2006 ed. and Supp. V); 5 CFR pt. 1201, subpt. E (2012); 29 CFR pt. 1614, subpt. C. A federal employee bringing a mixed case may pro- ceed in a variety of ways. She may first file a discrim- ination complaint with the agency itself, much as an employee challenging a personnel practice not appealable to the MSPB could do. See 5 CFR §1201.154(a); 29 CFR §1614.302(b). If the agency decides against her, the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court. See 5 CFR §1201.154(b); 29 CFR §1614.302(d)(1)(i). Alternatively, the employee may initiate the process by bringing her case directly to the MSPB, forgoing the agency’s own system for evaluating discrimination charges. See 5 CFR §1201.154(a); 29 CFR §1614.302(b). If the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review. See 5 U. S. C. §§7702(a)(3), (b); 5 CFR §1201.161; 29 CFR §1614.303. The question in this case concerns where that judicial review should take place. Section 7703 of the CSRA governs judicial review of the MSPB’s decisions. Section 7703(b)(1) gives the basic rule: “Except as provided in paragraph (2) of this subsection, a petition to review a . . . final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit.” Section 7703(b)(2) then spells out the exception: “Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under [the enforcement sections of the Civil Rights Act, Age Discrimination in Employment Act, and Fair Labor Standards Act], as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702.” The enforcement provisions of the antidiscrimination statutes listed in this exception all authorize suit in fed- eral district court. See 42 U. S. C. §§2000e–16(c), 2000e–5(f); 29 U. S. C. §633a(c); §216(b); see also Elgin v. Department of Treasury, 567 U. S. ___, ___ (2012) (slip op., at 9–10). Section 7702 describes and provides for the “cases of discrimination” referenced in §7703(b)(2)’s exception. In relevant part, §7702(a)(1) states: “[I]n the case of any employee . . . who— “(A) has been affected by an action which the employee . . . may appeal to the Merit Systems Protection Board, and “(B) alleges that a basis for the action was discrimination prohibited by [specified antidiscrimination statutes], “the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures.” The “cases of discrimination” in §7703(b)(2)’s exception, in other words, are mixed cases, in which an employee challenges as discriminatory a personnel action appealable to the MSPB. The parties here dispute whether, in light of these interwoven statutory provisions, an employee should go to the Federal Circuit (pursuant to the general rule of §7703(b)(1)), or instead to a district court (pursuant to the exception in §7703(b)(2)), when the MSPB has dismissed her mixed case on procedural grounds. B Petitioner Carolyn Kloeckner used to work at the Department of Labor (DOL or agency). In June 2005, while still an employee, she filed a complaint with the agency’s civil rights office, alleging that DOL had engaged in unlawful sex and age discrimination by subjecting her to a hostile work environment. At that point, Kloeckner’s case was not appealable to the MSPB because she had not suffered a sufficiently serious personnel action (e.g., a removal or demotion). See supra, at 1–2. Her claim thus went forward not under the special procedures for mixed cases, but under the EEOC’s regulations for all other charges of discrimination. See 29 CFR pt. 1614, subpts. A, D. In line with those rules, the agency completed an internal investigation and report in June 2006, and Kloeckner requested a hearing before an EEOC administrative judge. The next month, DOL fired Kloeckner. A removal from employment is appealable to the MSPB, see supra, at 1–2, and Kloeckner believed the agency’s action was discriminatory; she therefore now had a mixed case. As permitted by regulation, see supra, at 3, she initially elected to file that case with the MSPB. Her claim of discriminatory removal, however, raised issues similar to those in her hostile work environment case, now pending before an EEOC judge; as a result, she became concerned that she would incur duplicative discovery expenses. To address that problem, she sought leave to amend her EEOC complaint to include her claim of discriminatory removal, and she asked the MSPB to dismiss her case without prejudice for four months to allow the EEOC process to go forward. See App. 13, 50–51. Both of those motions were granted. The EEOC judge accepted the amendment,[2] and on September 18, 2006, the MSPB dismissed her appeal “without prejudice to [her] right to refile . . . either (A) within 30 days after a decision is rendered in her EEOC case; or (B) by January 18, 2007—whichever occurs first.” Id., at 5. Discovery continued in the EEOC proceeding well past the MSPB’s January 18 deadline. In April, the EEOC judge found that Kloeckner had engaged in bad-faith conduct in connection with discovery. As a sanction, the judge terminated the EEOC proceeding and returned Kloeckner’s case to DOL for a final decision. Six months later, in October 2007, DOL issued a ruling rejecting all of Kloeckner’s claims. See id., at 10–49. Kloeckner appealed DOL’s decision to the Board in November 2007. That appeal was filed within 30 days, the usual window for seeking MSPB review of an agency’s determination of a mixed case. See 5 CFR §1201.154(a); 29 CFR §1614.302(d)(1)(ii). But the MSPB declined to treat Kloeckner’s filing as an ordinary appeal of such an agency decision. Instead, the Board viewed it as an effort to reopen her old MSPB case—many months after the January 18 deadline for doing so had expired. The Board therefore dismissed Kloeckner’s appeal as untimely. See App. 53–57. Kloeckner then brought this action against DOL in Federal District Court, alleging unlawful discrimination. The District Court dismissed the complaint for lack of jurisdiction. See Kloeckner v. Solis, Civ. Action No. 4:09CV804 (ED Mo., Feb. 18, 2010). Relying on the Eighth Circuit’s ruling in Brumley v. Levinson, 991 F.2d 801 (1993) (per curiam), the court held that because the MSPB had dismissed Kloeckner’s claims on procedural grounds, she should have sought review in the Federal Circuit under §7703(b)(1); in the court’s view, the only discrimination cases that could go to district court pursuant to §7703(b)(2) were those the MSPB had decided on the merits. The Eighth Circuit affirmed on the same reasoning. See 639 F.3d 834 (2011). We granted certiorari, 565 U. S. ___ (2012), to resolve a Circuit split on whether an employee seeking judicial review should proceed in the Federal Circuit or in a district court when the MSPB has dismissed her mixed case on procedural grounds.[3] We now reverse the Eighth Circuit’s decision. II As the above account reveals, the intersection of fed- eral civil rights statutes and civil service law has produced a complicated, at times confusing, process for resolving claims of discrimination in the federal workplace. But even within the most intricate and complex systems, some things are plain. So it is in this case, where two sections of the CSRA, read naturally, direct employees like Kloeckner to district court. Begin with §7703, which governs judicial review of the MSPB’s rulings. As already noted, see supra, at 3–4, §7703(b)(1) provides that petitions to review the Board’s final decisions should be filed in the Federal Circuit—“[e]xcept as provided in paragraph (2) of this subsection.” Paragraph (2), i.e., §7703(b)(2), then sets out a different rule for one category of cases—“[c]ases of discrimination subject to the provisions of section 7702 of this title.” Such a case, paragraph (2) instructs, “shall be filed under” the enforcement provision of an enumerated antidiscrimination statute. And each of those enforcement provisions authorizes an action in federal district court. See supra, at 3–4. So “[c]ases of discrimination subject to the provisions of section 7702” shall be filed in district court. Turn next to §7702, which identifies the cases “subject to [its] provisions.” As also stated earlier, §7702(a)(1) de- scribes cases in which a federal employee “(A) has been affected by an action which [she] may appeal to the Merit Systems Protection Board, and (B) alleges that a basis for the action was discrimination prohibited by” a listed federal statute. The subsection thus describes what we (adopting the lingo of the applicable regulations) have called “mixed cases.” See 29 CFR §1614.302. Those are the “cases of discrimination subject to” the rest of §7702’s provisions. Now just put §7703 and §7702 together—say, in the form of a syllogism, to make the point obvious. Under §7703(b)(2), “cases of discrimination subject to [§7702]” shall be filed in district court. Under §7702(a)(1), the “cases of discrimination subject to [§7702]” are mixed cases—those appealable to the MSPB and alleging discrimination. Ergo, mixed cases shall be filed in district court. And so that is where Kloeckner’s case should have been filed (as indeed it was). No one here contests that Kloeckner brought a mixed case—that she was affected by an action (i.e., removal) appealable to the MSPB and that she alleged discrimination prohibited by an enumerated fed- eral law. And under the CSRA’s terms, that is all that matters. Regardless whether the MSPB dismissed her claim on the merits or instead threw it out as untimely, Kloeckner brought the kind of case that the CSRA routes, in crystalline fashion, to district court. III The Government offers an alternative view (as did the Eighth Circuit)—that the CSRA directs the MSPB’s merits decisions to district court, while channeling its procedural rulings to the Federal Circuit. According to the Government, that bifurcated scheme, though not prescribed in the CSRA in so many words, lies hidden in the statute’s timing requirements. But we return from the Government’s mazelike tour of the CSRA persuaded only that the merits-procedure distinction is a contrivance, found nowhere in the statute’s provisions on judicial review. The Government’s argument has two necessary steps. First, the Government claims that §7703(b)(2)’s exception to Federal Circuit jurisdiction applies only when the MSPB’s decision in a mixed case is a “judicially review- able action” under §7702. Second, the Government asserts that the Board’s dismissal of a mixed case on procedural grounds does not qualify as such a “judicially reviewable action.” We describe in turn the way the Government arrives at each of these conclusions. The first step of the Government’s argument derives from §7703(b)(2)’s second sentence. Right after stating that “cases of discrimination subject to [§7702]” shall be filed under specified antidiscrimination statutes (i.e., shall be filed in district court), §7703(b)(2) provides: “Notwithstanding any other provision of law, any such case filed under any such [statute] must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under section 7702.” The Government reads that sentence to establish an ad- ditional prerequisite for taking a case to district court, instead of to the Federal Circuit. To fall within the §7703(b)(2) exception, the Government says, it is not enough that a case qualify as a “case of discrimination subject to [§7702]”; in addition, the MSPB’s decision must count as a “judicially reviewable action.” See Brief for United States 20–21. If the MSPB’s decision is not a “judicially reviewable action”—a phrase the Government characterizes as a “term of art in this context,” Tr. of Oral Arg. 28—the ruling still may be subject to judicial review (i.e., “judicially reviewable” in the ordinary sense), but only in the Federal Circuit. The Government’s second step—that the Board’s pro- cedural rulings are not “judicially reviewable actions”—begins with the language of §7702(a)(3). That provision, the Government states, “defines for the most part which MSPB decisions qualify as ‘judicially reviewable actions[s]’ ” by “providing that ‘[a]ny decision of the Board under paragraph (1) of this subsection shall be a judicially reviewable action as of’ the date of the decision.” Brief for Respondent 21 (quoting §7702(a)(3); emphasis and brackets added by Government). From there, the Govern- ment moves on to the cross-referenced paragraph—§7702(a)(1)—which states, among other things, that the Board “shall, within 120 days of [the employee’s filing], decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures.” According to the Government, the Board only “decide[s] . . . the issue of discrimination” when it rules on the merits, rather than on procedural grounds. On that view, a procedural decision is not in fact a “decision of the Board under paragraph (1),” which means that it also is not a “judicially reviewable action” under §7702(a)(3). See Brief for Respondent 21–22. And so (returning now to the first step of the Government’s argument), judicial review of a procedural decision can occur only in the Federal Circuit, and not in district court. If you need to take a deep breath after all that, you’re not alone. It would be hard to dream up a more round- about way of bifurcating judicial review of the MSPB’s rulings in mixed cases. If Congress had wanted to send merits decisions to district court and procedural dismissals to the Federal Circuit, it could just have said so. The Government has offered no reason for Congress to have constructed such an obscure path to such a simple result. And taking the Government’s analysis one step at a time makes it no more plausible than as a gestalt. The Government’s initial move is to read §7703(b)(2)’s second sentence as adding a requirement for a case to fall within the exception to Federal Circuit jurisdiction. But that sentence does no such thing; it is nothing more than a filing deadline. Consider each sentence of §7703(b)(2) in turn. The first sentence defines which cases should be brought in district court, rather than in the Federal Circuit; here, the full description is “[c]ases of discrimination subject to the provisions of section 7702”—to wit, mixed cases. The second sentence then states when those cases should be brought: “any such case . . . must be filed within 30 days” of the date the employee “received notice of the judicially reviewable action.” The reference to a “judicially reviewable action” in that sentence does important work: It sets the clock running for when a case that belongs in district court must be filed there. What it does not do is to further define which timely-brought cases belong in dis- trict court instead of in the Federal Circuit. Describing those cases is the first sentence’s role. Proof positive that the Government misreads §7703(b)(2) comes from considering what the phrase “ju- dicially reviewable action” would mean under its theory. In normal legal parlance, to say that an agency action is not “judicially reviewable” is to say simply that it is not subject to judicial review—that, for one or another reason, it cannot be taken to a court. But that ordinary understanding will not work for the Government here, because it wants to use the phrase to help determine which of two courts should review a decision, rather than whether judicial review is available at all. In the Government’s alternate universe, then, to say that an agency action is not “judicially reviewable” is to say that it is subject to judicial review in the Federal Circuit (even though not in district court). Small wonder that the Government must call the phrase “judicially reviewable action” a “term of art,” supra, at 9: On a natural reading, the phrase defines cases amenable to judicial review, rather than routes those cases as between two courts. And even were we to indulge the Government that far, we could not accept the second step of its analysis. At that stage, remember, the Government contends that under §7702 only decisions on the merits qualify as “judicially reviewable actions.” The language on which the Government principally relies, stated again, is as follows: “[T]he Board shall, within 120 days of [the employee’s filing], decide both the issue of discrimination and the appealable action.” But that provision, too, is only a timing requirement; it is designed to ensure that the Board act promptly on employees’ complaints. We see no reason to think that embedded within that directive is a limitation on the class of “judicially reviewable actions.” Nor (even were we to indulge the Government on that point as well) can we find the particular restriction the Government urges. According to the Government, the MSPB does not “decide . . . the issue of discrimination” when it dismisses a mixed case on procedural grounds. But that phrase cannot bear the weight the Government places on it. All the phrase signifies is that the Board should dispose of the issue in some way, whether by actually adjudicating it or by holding that it was not properly raised. Indeed, were the Government right, §7702(a)’s statement that the Board “shall” decide the issue of discrimination would appear to bar procedural dismissals, requiring the Board to resolve on the merits even untimely complaints. No one (least of all the Government, which here is defending a procedural ruling) thinks that a plausible congressional command. Another section of the statute—§7702(e)(1)(B)—puts the final nail in the coffin bearing the Government’s argument. That section states: “[I]f at any time after the 120th day following [an employee’s filing] with the Board . . . , there is no judicially reviewable action[,] . . . an employee shall be entitled to file a civil action” in district court under a listed antidiscrimination statute. That provision, as the Government notes, is designed “to save employees from being held in perpetual uncertainty by Board inaction.” Brief for Respondent 28. But if, as the Government insists, a procedural ruling is not a “judicially reviewable action,” then the provision would have another, surprising effect—essentially blowing up the Government’s argument from the inside. In that event, an employee whose suit the Board had dismissed on procedural grounds could bring suit in district court under 7702(e)(1)(B) (so long as 120 days had elapsed from her Board filing), because she would have received “no judicially reviewable action.” And what’s more, she could do so even many years later, because the statute’s usual 30-day filing deadline begins to run only upon “notice of [a] judicially reviewable action.” §7703(b)(2). So an argument intended to keep employees like Kloeckner out of district court would paradoxically, and nonsensically, result in giving them all the time in the world to file suit there. Responding to this unwelcome outcome, the Government offers us an exit route: We should avoid “absurd results,” the Government urges, by applying §7702(e)(1)(B) only to “cases over which the Board continues to exert jurisdiction.” Brief for Respondent 27, 28, n. 4. But as the Government admits, that “gloss on the statute is not found in the text,” Tr. of Oral Arg. 50; the Government’s remedy requires our reading new words into the statute. We think a better option lies at hand. If we reject the Government’s odd view of “judicially reviewable actions,” then no absurdity arises in the first place: §7702(e)(1)(B) would have no bearing on any case the MSPB dismissed within 120 days, whatever the grounds. It is the Government’s own misreading that creates the need to “fix” §7702(e)(1)(B); take that away and the provision serves, as it was intended, only as a remedy for Board inaction.[4] IV A federal employee who claims that an agency action appealable to the MSPB violates an antidiscrimination statute listed in §7702(a)(1) should seek judicial review in district court, not in the Federal Circuit. That is so whether the MSPB decided her case on procedural grounds or instead on the merits. Kloeckner therefore brought her suit in the right place. We reverse the con- trary judgment of the Court of Appeals for the Eighth Circuit, and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 The actions entitling an employee to appeal a case to the MSPB include “(1) a removal; (2) a suspension for more than 14 days; (3) a reduction in grade; (4) a reduction in pay; and (5) a furlough.” 5 U. S. C. §7512. 2 Neither the CSRA nor any regulation explicitly authorizes an EEOC judge to consider the legality of a removal or other serious personnel action before the Board has done so. See supra, at 2–3. Nonetheless, the EEOC has approved that approach when the issues the personnel action raises are “firmly enmeshed” in an ongoing EEOC proceeding in order to avoid “delay[ing] justice and creat[ing] unnecessary proce-dural complications.” Burton v. Espy, Appeal No. 01932449, 1994 WL 748214, *12 (EEOC, Oct. 28, 1994); see also Myvett v. Poteat, Appeal No. 0120103671, 2011 WL 6122516, *2 (EEOC, Nov. 21, 2011). We express no view on the propriety of this practice. 3 Compare 639 F.3d 834 (CA8 2011) (case below) (Federal Circuit); Ballentine v. MSPB, 738 F.2d 1244 (CA Fed. 1984) (same), with Harms v. IRS, 321 F.3d 1001 (CA10 2003) (district court); Downey v. Runyon, 160 F.3d 139 (CA2 1998) (same). 4 The Government supplements its tortuous reading of the CSRA’s text with an appeal to one of the statute’s purposes—in its words, “ensuring that the Federal Circuit would develop a uniform body of case law governing federal personnel issues.” Brief for Respondent 32. We have previously recognized that Congress, through the CSRA, sought to avoid “unnecessary layer[s] of judicial review in lower federal courts, and encourag[e] more consistent judicial decisions.” United States v. Fausto, 484 U.S. 439, 449 (1988) (internal quotation marks and some bracketing omitted). But in this case, the Government’s argument about the necessity of Federal Circuit review runs into an inconvenient fact: When Congress passed the CSRA, the Federal Circuit did not exist, and §7703(b)(1) thus provided, as the general rule, that a federal employee should appeal a Board decision to 1 of the 12 Courts of Appeals or the Court of Claims. See Civil Service Reform Act of 1978, 92Stat. 1143. Moreover, the Government’s own approach would leave many cases involving federal employment issues in district court. If the MSPB rejects on the merits a complaint alleging that an agency violated the CSRA as well as an antidiscrimination law, the suit will come to district court for a decision on both questions. See Williams v. Department of Army, 715 F.2d 1485, 1491 (CA Fed. 1983) (en banc). In any event, even the most formidable argument concerning the statute’s purposes could not overcome the clarity we find in the statute’s text.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus KLOECKNER v. SOLIS, SECRETARY OF LABOR certiorari to the united states court of appeals for the eighth circuit No. 11–184. Argued October 2, 2012—Decided December 10, 2012 The Civil Service Reform Act of 1978 (CSRA) permits a federal employee subjected to a particularly serious personnel action such as a discharge or demotion to appeal her agency’s decision to the Merit Systems Protection Board (MSPB or Board). Such an appeal may allege that the agency had insufficient cause for taking the action under the CSRA itself; but the appeal may also or instead charge the agency with discrimination prohibited by a federal statute. See 5 U. S. C. §7702(a)(1). When an employee alleges that a personnel action appealable to the MSPB was based on discrimination, her case is known as a “mixed case.” See 29 CFR §1614.302. Mixed cases are governed by special procedures set out in the CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC). Under those procedures, an employee may initiate a mixed case by filing a discrimination complaint with the agency. If the agency decides against the employee, she may either appeal the agency’s decision to the MSPB or sue the agency in district court. Alternatively, the employee can bypass the agency and bring her mixed case directly to the MSPB. If the MSPB upholds the personnel action, whether in the first instance or after the agency has done so, the employee is entitled to seek judicial review. Section 7703(b)(1) of the CSRA provides that petitions for review of MSPB decisions “shall be filed in the . . . Federal Circuit,” except as provided in §7703(b)(2). Section 7703(b)(2) instructs that “[c]ases of discrimination subject to the provisions of [§7702] shall be filed under [the enforcement provision of a listed antidiscrimination statute].” Those enforcement provisions all authorize suit in federal district court. The “cases of discrimination subject to the provisions of §7702” are those in which an employee “(A) has been affected by an action which [she] may appeal to the [MSPB], and (B) alleges that a basis for the action was discrimination prohibited by” a listed federal statute; in other words, “mixed cases.” In 2005, while an employee of the Department of Labor (DOL or agency), petitioner Carolyn Kloeckner filed a complaint with the agency’s civil rights office, alleging that DOL had engaged in unlawful sex and age discrimination by subjecting her to a hostile work environment. Following applicable EEOC regulations, DOL completed an internal investigation and report, and Kloeckner requested a hearing before an EEOC administrative judge. While the EEOC case was pending, Kloeckner was fired. Because Kloeckner believed that DOL’s decision to fire her was based on unlawful discrimination, she now had a “mixed case.” Kloeckner originally brought her mixed case directly to the MSPB. Concerned about duplicative discovery expenses between her EEOC and MSPB cases, she moved to amend her EEOC complaint to include her claim of discriminatory removal and asked the MSPB to dismiss her case without prejudice for four months to allow the EEOC process to go forward. Both motions were granted. In September 2006, the MSPB dismissed her appeal without prejudice to her right to refile by January 18, 2007. The EEOC case, however, continued until April 2007, when the EEOC judge terminated the proceeding as a sanction for Kloeckner’s bad-faith discovery conduct and returned the case to DOL for a final decision. In October, DOL ruled against Kloeckner on all of her claims. Kloeckner appealed to the Board in November 2007. The Board dismissed Kloeckner’s appeal as untimely, viewing it as an effort to reopen her old MSPB case months after the January 18 deadline. Kloeckner then brought this action against DOL in Federal District Court, alleging unlawful discrimination. The court dismissed the complaint for lack of jurisdiction. It held that, because the MSPB dismissed Kloeckner’s claims on procedural grounds, she should have sought review in the Federal Circuit under §7703(b)(1); in the court’s view, the only discrimination cases that could go to district court pursuant to §7703(b)(2) were those the MSPB had decided on the merits. The Eighth Circuit affirmed. Held: A federal employee who claims that an agency action appealable to the MSPB violates an antidiscrimination statute listed in §7702(a)(1) should seek judicial review in district court, not the Federal Circuit, regardless whether the MSPB decided her case on procedural grounds or on the merits. . (a) Two sections of the CSRA, read naturally, direct employees like Kloeckner to district court. Begin with § 7703, which governs judicial review of MSPB rulings. Section 7703(b)(1) provides that petitions to review the Board’s final decisions should be filed in the Federal Circuit—“[e]xcept as provided in paragraph (2) of this subsection.” Section 7703(b)(2) then provides that “[c]ases of discrimination subject to the provisions of [§7702]” “shall be filed under” the enforcement provision of a listed antidiscrimination statute. Each of the referenced enforcement provisions authorizes an action in federal district court. Thus, “[c]ases of discrimination subject to the provisions of [§7702]” shall be filed in district court. Turn next to §7702, which provides that the cases “subject to [its] provisions” are cases in which a federal employee “has been affected by an action which [she] may appeal to the [MSPB],” and “alleges that a basis for the action was discrimination prohibited by” a listed federal statute. The “cases of discrimination subject to” §7702 are therefore mixed cases. Putting §7703 and §7702 together, mixed cases shall be filed in district court. That is where Kloeckner’s case should have been, and indeed was, filed. Regardless whether the MSPB dismissed her claim on the merits or threw it out as untimely, she brought the kind of case that the CSRA routes to district court. . (b) The Government’s alternative view—that the CSRA directs the MSPB’s merits decisions to district court, while channeling its procedural rulings to the Federal Circuit—is not supported by the statute. According to the Government, that bifurcated scheme, though not specifically prescribed in the CSRA, lies hidden in the statute’s timing requirements. But the Government cannot explain why Congress would have constructed such an obscure path to such a simple result. And taking the Government’s analysis one step at a time makes it no more plausible. . 639 F.3d 834, reversed and remanded. Kagan, J., delivered the opinion for a unanimous Court.

Section 7703(b)(1) of the Civil Service Reform Act of 1978 (CSRA) provides that a federal employee subjected to an adverse personnel action such as a discharge or demotion may appeal her agency's decision to the Merit Systems Protection Board (MSPB), an independent adjudicator of federal employment disputes. When an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a mixed case. Under §7702(a)(1), such a case is filed under the enforcement provision of an enumerated antidiscrimination statute, and the employee has a right to appeal the agency decision. However, if the agency decides against her, she may then either take the matter to her agency or bypass further administrative review by suing the agency in district court. Alternatively, the employee may initiate the process of bringing her case directly to the agency, forgoing the agency's own system for evaluating discrimination charges. She then seeks leave to amend her EEOC complaint to include her claim of discriminatory removal, and she also seeks leave for an amendment of her complaint so as to allow the EEOC process to go forward. Both of these motions were granted, and on September 18, 2006, after the agency had dismissed her appeal without prejudice to her right to refile either (A) within 30 days after a decision is rendered in the employee's EEOC case; or (B) by January 18, 2007, whichever occurs first. The EEOC judge accepted the amendment and dismissed the appeal. Thereafter, petitioner brought an action against petitioner in Federal District Court, alleging unlawful discrimination. The District Court dismissed the complaint for lack of jurisdiction. The Court of Appeals affirmed on the same reasoning. Held: An employee seeking judicial review should proceed in the Federal Circuit or, instead, in a district court, when the agency has dismissed her mixed case on procedural grounds. . (a) The CSRA directs that the merits-procedure distinction be found nowhere in the statute's provisions on judicial review. But even within the most intricate and complex systems, some things are plain. Here, where two sections of the CSRA, read naturally, direct employees like petitioner to district court: (1) under §7703 (b)(2), the employee in question should seek judicial review in the District Court. That is so whether the agency decided her case on procedural grounds or instead on the merits. Kloeckner therefore brought her suit in the right place. P.. (b) The Government offers an alternative view of the statute that directs the merits decisions to district courts, while channeling its procedural rulings to the F.C. Circuit. It is the Government that creates the need to fix the statute so that, in the Government's alternate universe, to say that an agency action is not considered "judicially reviewable" would say that it is subject to judicial review, even though not in federal court. Pp. 462 U.S. 566. 639 F.3d 834, reversed and remanded. WHITE CHIEF JUSTICE, concurring in the judgment, concluded that: 1. Under the relevant language of the applicable regulations, the actions entitling an employee to appeal a case to the employer are subject to federal district court jurisdiction. In the relevant part of the relevant subsection, §7704(a), which states that the Board shall, within 120 days of the employee filing an EEOC action, decide both the issue of discrimination and the appealable action, includes cases in which an employee has been affected by an action which she may appeal to, and alleges a basis for the action is discrimination prohibited by, a listed federal statute. This section describes what this Court (adopting the lingo of applicable regulations) have called mixed cases, which are the "cases of discrimination subject to" the rest of § 7702's provisions. Moreover, the Government has offered no reason for Congress to have constructed such an obscure path to such a simple result. Even assuming, arguendo, that the Government misreads the statute, the provision serves, as it was intended, only as a remedy for Board inaction.. 2. A federal employee in this case who claims that a agency action appealable to a designated agency should seek review in federal courts, rather than in the courts of appeals, should seek such review in a federal court, not in the federal circuit. KENNEDY, J., filed a petition in the Court of Appeals for the Eighth Circuit, and, in that court, the court dismissed the case as untimely. Although the Government concedes that the bifurcated scheme, though not prescribed in that section in so many words, lies hidden in the applicable statute, it appears that, when Congress passed the

2012_11-1447

https://www.oyez.org/cases/2012/11-1447

. Our decisions in Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987) , and Dolan v. City of Tigard, 512 U. S. 374 (1994) , provide important protection against the misuse of the power of land-use regulation. In those cases, we held that a unit of government may not condition the approval of a land-use permit on the owner’s relinquishment of a portion of his property unless there is a “nexus” and “rough proportionality” between the government’s demand and the effects of the proposed land use. In this case, the St. Johns River Water Management District (District) believes that it circumvented Nollan and Dolan because of the way in which it structured its handling of a permit application submitted by Coy Koontz, Sr., whose estate is represented in this Court by Coy Koontz, Jr. [ 1 ] The District did not approve his application on the condition that he surrender an interest in his land. Instead, the District, after suggesting that he could obtain approval by signing over such an interest, denied his application because he refused to yield. The Florida Supreme Court blessed this maneuver and thus effectively interred those important decisions. Because we conclude that Nollan and Dolan cannot be evaded in this way, the Florida Supreme Court’s decision must be reversed. I A In 1972, petitioner purchased an undeveloped 14.9-acre tract of land on the south side of Florida State Road 50, a divided four-lane highway east of Orlando. The property is located less than 1,000 feet from that road’s intersection with Florida State Road 408, a tolled expressway that is one of Orlando’s major thoroughfares. A drainage ditch runs along the property’s western edge, and high-voltage power lines bisect it into northern and southern sections. The combined effect of the ditch, a 100foot wide area kept clear for the power lines, the highways, and other construction on nearby parcels is to isolate the northern section of petitioner’s property from any other undeveloped land. Although largely classified as wetlands by the State, the northern section drains well; the most significant standing water forms in ruts in an unpaved road used to access the power lines. The natural topography of the property’s southern section is somewhat more diverse, with a small creek, forested uplands, and wetlands that sometimes have water as much as a foot deep. A wildlife survey found evidence of animals that often frequent developed areas: raccoons, rabbits, several species of bird, and a turtle. The record also indicates that the land may be a suitable habitat for opossums. The same year that petitioner purchased his property, Florida enacted the Water Resources Act, which divided the State into five water management districts and authorized each district to regulate “construction that connects to, draws water from, drains water into, or is placed in or across the waters in the state.” 1972 Fla. Laws ch. 72–299, pt. IV, §1(5), pp. 1115, 1116 (codified as amended at Fla. Stat. §373.403(5) (2010)). Under the Act, a landowner wishing to undertake such construction must obtain from the relevant district a Management and Storage of Surface Water (MSSW) permit, which may impose “such reasonable conditions” on the permit as are “necessary to assure” that construction will “not be harmful to the water resources of the district.” 1972 Fla. Laws §4(1), at 1118 (codified as amended at Fla. Stat. §373.413(1)). In 1984, in an effort to protect the State’s rapidly diminishing wetlands, the Florida Legislature passed the Warren S. Henderson Wetlands Protection Act, which made it illegal for anyone to “dredge or fill in, on, or over sur- face waters” without a Wetlands Resource Management (WRM) permit. 1984 Fla. Laws ch. 84–79, pt. VIII, §403.905(1), pp. 204–205. Under the Henderson Act, permit applicants are required to provide “reasonable assurance” that proposed construction on wetlands is “not contrary to the public interest,” as defined by an enumerated list of criteria. See Fla. Stat. §373.414(1). Consistent with the Henderson Act, the St. Johns River Water Management District, the district with jurisdiction over petitioner’s land, requires that permit applicants wishing to build on wetlands offset the resulting environmental damage by creating, enhancing, or preserving wetlands elsewhere. Petitioner decided to develop the 3.7-acre northern section of his property, and in 1994 he applied to the District for MSSW and WRM permits. Under his proposal, petitioner would have raised the elevation of the northernmost section of his land to make it suitable for a building, graded the land from the southern edge of the building site down to the elevation of the high-voltage electrical lines, and installed a dry-bed pond for retaining and gradually releasing stormwater runoff from the building and its parking lot. To mitigate the environmental effects of his proposal, petitioner offered to foreclose any possible future development of the approximately 11acre southern section of his land by deeding to the District a conservation easement on that portion of his property. The District considered the 11acre conservation easement to be inadequate, and it informed petitioner that it would approve construction only if he agreed to one of two concessions. First, the District proposed that petitioner reduce the size of his development to 1 acre and deed to the District a conservation easement on the remaining 13.9 acres. To reduce the development area, the District suggested that petitioner could eliminate the dry-bed pond from his proposal and instead install a more costly subsurface stormwater management system beneath the building site. The District also suggested that petitioner install retaining walls rather than gradually sloping the land from the building site down to the elevation of the rest of his property to the south. In the alternative, the District told petitioner that he could proceed with the development as proposed, build- ing on 3.7 acres and deeding a conservation easement to the government on the remainder of the property, if he also agreed to hire contractors to make improvements to District-owned land several miles away. Specifically, peti- tioner could pay to replace culverts on one parcel or fill in ditches on another. Either of those projects would have enhanced approximately 50 acres of District-owned wetlands. When the District asks permit applicants to fund offsite mitigation work, its policy is never to require any particular offsite project, and it did not do so here. Instead, the District said that it “would also favorably consider” alternatives to its suggested offsite mitigation projects if petitioner proposed something “equivalent.” App. 75. Believing the District’s demands for mitigation to be excessive in light of the environmental effects that his building proposal would have caused, petitioner filed suit in state court. Among other claims, he argued that he was entitled to relief under Fla. Stat. §373.617(2), which allows owners to recover “monetary damages” if a state agency’s action is “an unreasonable exercise of the state’s police power constituting a taking without just compensation.” B The Florida Circuit Court granted the District’s mo- tion to dismiss on the ground that petitioner had not ade- quately exhausted his state-administrative remedies, but the Florida District Court of Appeal for the Fifth Circuit re- versed. On remand, the State Circuit Court held a 2-day bench trial. After considering testimony from several ex- perts who examined petitioner’s property, the trial court found that the property’s northern section had already been “seriously degraded” by extensive construction on the surrounding parcels. App. to Pet. for Cert. D–3. In light of this finding and petitioner’s offer to dedicate nearly three-quarters of his land to the District, the trial court concluded that any further mitigation in the form of payment for offsite improvements to District property lacked both a nexus and rough proportionality to the environmental impact of the proposed construction. Id., at D–11. It accordingly held the District’s actions unlawful under our decisions in Nollan and Dolan. The Florida District Court affirmed, 5 So. 3d 8 (2009), but the State Supreme Court reversed, 77 So. 3d 1220 (2011). A majority of that court distinguished Nollan and Dolan on two grounds. First, the majority thought it significant that in this case, unlike Nollan or Dolan, the District did not approve petitioner’s application on the condition that he accede to the District’s demands; in- stead, the District denied his application because he refused to make concessions. 77 So. 3d, at 1230. Second, the majority drew a distinction between a demand for an interest in real property (what happened in Nollan and Dolan) and a demand for money. 77 So. 3d, at 1229– 1230. The majority acknowledged a division of authority over whether a demand for money can give rise to a claim under Nollan and Dolan, and sided with those courts that have said it cannot. 77 So. 3d, at 1229–1230. Compare, e.g., McClung v. Sumner, 548 F. 3d 1219, 1228 (CA9 2008), with Ehrlich v. Culver City, 12 Cal. 4th 854, 876, 911 P. 2d 429, 444 (1996); Flower Mound v. Stafford Estates Ltd. Partnership, 135 S. W. 3d 620, 640–641 (Tex. 2004). Two justices concurred in the result, arguing that petitioner had failed to exhaust his administrative remedies as re- quired by state law before bringing an inverse condem- nation suit that challenges the propriety of an agency action. 77 So. 3d, at 1231–1232; see Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Trust Fund, 427 So. 2d 153, 159 (Fla. 1982). Recognizing that the majority opinion rested on a question of federal constitutional law on which the lower courts are divided, we granted the petition for a writ of certiorari, 568 U. S. ___ (2012), and now reverse. II A We have said in a variety of contexts that “the government may not deny a benefit to a person because he ex- ercises a constitutional right.” Regan v. Taxation With Representation of Wash., 461 U. S. 540, 545 (1983) . See also, e.g., Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47 –60 (2006); Rutan v. Republican Party of Ill., 497 U. S. 62, 78 (1990) . In Perry v. Sindermann, 408 U. S. 593 (1972) , for example, we held that a public college would violate a professor’s freedom of speech if it declined to renew his contract because he was an outspoken critic of the college’s administration. And in Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974) , we concluded that a county impermissibly burdened the right to travel by extending healthcare benefits only to those indigent sick who had been residents of the county for at least one year. Those cases reflect an overarching principle, known as the unconstitutional condi- tions doctrine, that vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up. Nollan and Dolan “involve a special application” of this doctrine that protects the Fifth Amendment right to just compensation for property the government takes when owners apply for land-use permits. Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 547 (2005) ; Dolan, 512 U. S., at 385 (invoking “the well-settled doctrine of ‘unconstitutional conditions’ ”). Our decisions in those cases reflect two realities of the permitting process. The first is that land-use permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits because the government often has broad discretion to deny a permit that is worth far more than property it would like to take. By conditioning a building permit on the owner’s deeding over a public right-of- way, for example, the government can pressure an owner into voluntarily giving up property for which the Fifth Amendment would otherwise require just compensation. See id., at 384; Nollan, 483 U. S., at 831. So long as the building permit is more valuable than any just compensation the owner could hope to receive for the right-of-way, the owner is likely to accede to the government’s demand, no matter how unreasonable. Extortionate demands of this sort frustrate the Fifth Amendment right to just compensation, and the unconstitutional conditions doctrine prohibits them. A second reality of the permitting process is that many proposed land uses threaten to impose costs on the public that dedications of property can offset. Where a building proposal would substantially increase traffic congestion, for example, officials might condition permit approval on the owner’s agreement to deed over the land needed to widen a public road. Respondent argues that a similar rationale justifies the exaction at issue here: petitioner’s proposed construction project, it submits, would destroy wetlands on his property, and in order to compensate for this loss, respondent demands that he enhance wet- lands elsewhere. Insisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy, and we have long sustained such regulations against constitutional attack. See Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926) . Nollan and Dolan accommodate both realities by allowing the government to condition approval of a permit on the dedication of property to the public so long as there is a “nexus” and “rough proportionality” between the prop- erty that the government demands and the social costs of the applicant’s proposal. Dolan, supra, at 391; Nollan, 483 U. S., at 837. Our precedents thus enable permitting authorities to insist that applicants bear the full costs of their proposals while still forbidding the government from engaging in “out-and-out . . . extortion” that would thwart the Fifth Amendment right to just compensation. Ibid. (internal quotation marks omitted). Under Nollan and Dolan the government may choose whether and how a per- mit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts. B The principles that undergird our decisions in Nollan and Dolan do not change depending on whether the government approves a permit on the condition that the applicant turn over property or denies a permit because the applicant refuses to do so. We have often concluded that denials of governmental benefits were impermissible under the unconstitutional conditions doctrine. See, e.g., Perry, 408 U. S., at 597 (explaining that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests” (emphasis added)); Memorial Hospital, 415 U. S. 250 (finding unconstitutional condition where government denied healthcare benefits). In so holding, we have recognized that regardless of whether the government ultimately succeeds in pressuring someone into forfeiting a constitutional right, the unconstitutional conditions doctrine forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them. A contrary rule would be especially untenable in this case because it would enable the government to evade the limitations of Nollan and Dolan simply by phrasing its demands for property as conditions precedent to permit approval. Under the Florida Supreme Court’s approach, a government order stating that a permit is “approved if” the owner turns over property would be subject to Nollan and Dolan, but an identical order that uses the words “denied until” would not. Our unconstitutional condi- tions cases have long refused to attach significance to the distinction between conditions precedent and conditions subsequent. See Frost & Frost Trucking Co. v. Railroad Comm’n of Cal., 271 U. S. 583 –593 (1926) (invalidating regulation that required the petitioner to give up a constitutional right “as a condition precedent to the enjoyment of a privilege”); Southern Pacific Co. v. Denton, 146 U. S. 202, 207 (1892) (invalidating statute “requiring the corporation, as a condition precedent to obtaining a per- mit to do business within the State, to surrender a right and privilege secured to it by the Constitution”). See also Flower Mound, 135 S. W. 3d, at 639 (“The government cannot sidestep constitutional protections merely by rephrasing its decision from ‘only if’ to ‘not unless’ ”). To do so here would effectively render Nollan and Dolan a dead letter. The Florida Supreme Court puzzled over how the government’s demand for property can violate the Takings Clause even though “ ‘no property of any kind was ever taken,’ ” 77 So. 3d, at 1225 (quoting 5 So. 3d, at 20 (Griffin, J., dissenting)); see also 77 So. 3d, at 1229–1230, but the unconstitutional conditions doctrine provides a ready answer. Extortionate demands for property in the land-use permitting context run afoul of the Takings Clause not because they take property but because they impermis- sibly burden the right not to have property taken without just compensation. As in other unconstitutional condi- tions cases in which someone refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of a governmental benefit is a constitutionally cog- nizable injury. Nor does it make a difference, as respondent suggests, that the government might have been able to deny petitioner’s application outright without giving him the option of securing a permit by agreeing to spend money to improve public lands. See Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978) . Virtually all of our unconstitutional conditions cases involve a gratuitous governmental benefit of some kind. See, e.g., Regan, 461 U. S. 540 (tax benefits); Memorial Hospital, 415 U. S. 250 (healthcare); Perry, 408 U. S. 593 (public employment); United States v. Butler, 297 U. S. 1, 71 (1936) (crop payments); Frost, supra (business license). Yet we have repeatedly rejected the argument that if the government need not confer a benefit at all, it can withhold the benefit because someone refuses to give up constitutional rights. E.g., United States v. American Library Assn., Inc., 539 U. S. 194, 210 (2003) (“[T]he government may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit” (emphasis added and inter- nal quotation marks omitted)); Wieman v. Updegraff, 344 U. S. 183, 191 (1952) (explaining in unconstitutional conditions case that to focus on “the facile generalization that there is no constitutionally protected right to public employment is to obscure the issue”). Even if respondent would have been entirely within its rights in denying the permit for some other reason, that greater authority does not imply a lesser power to condition permit approval on petitioner’s forfeiture of his constitutional rights. See Nollan, 483 U. S., at 836–837 (explaining that “[t]he evident constitutional propriety” of prohibiting a land use “disappears . . . if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition”). That is not to say, however, that there is no relevant difference between a consummated taking and the denial of a permit based on an unconstitutionally extortionate demand. Where the permit is denied and the condition is never imposed, nothing has been taken. While the un- constitutional conditions doctrine recognizes that this burdens a constitutional right, the Fifth Amendment man- dates a particular remedy—just compensation—only for takings. In cases where there is an excessive demand but no taking, whether money damages are available is not a question of federal constitutional law but of the cause of action—whether state or federal—on which the landowner relies. Because petitioner brought his claim pursuant to a state law cause of action, the Court has no occasion to discuss what remedies might be available for a Nollan/Dolan unconstitutional conditions violation either here or in other cases. C At oral argument, respondent conceded that the denial of a permit could give rise to a valid claim under Nollan and Dolan, Tr. of Oral Arg. 33–34, but it urged that we should not review the particular denial at issue here because petitioner sued in the wrong court, for the wrong remedy, and at the wrong time. Most of respondent’s objections to the posture of this case raise questions of Florida procedure that are not ours to decide. See Mullaney v. Wilbur, 421 U. S. 684, 691 (1975) ; Murdock v. Memphis, 20 Wall. 590, 626 (1875). But to the extent that respondent suggests that the posture of this case creates some federal obstacle to adjudicating petitioner’s unconstitutional conditions claim, we remand for the Florida courts to consider that argument in the first instance. Respondent argues that we should affirm because, rather than suing for damages in the Florida trial court as authorized by Fla. Stat. §373.617, petitioner should have first sought judicial review of the denial of his permit in the Florida appellate court under the State’s Administrative Procedure Act, see §§120.68(1), (2) (2010). The Flor-ida Supreme Court has said that the appellate court is the “proper forum to resolve” a “claim that an agency has applied a . . . statute or rule in such a way that the aggrieved party’s constitutional rights have been violated,” Key Haven Associated Enterprises, 427 So. 2d, at 158, and respondent has argued throughout this litigation that petitioner brought his unconstitutional conditions claim in the wrong forum. Two members of the Florida Supreme Court credited respondent’s argument, 77 So. 3d, at 1231–1232, but four others refused to address it. We decline respondent’s invitation to second-guess a State Supreme Court’s treatment of its own procedural law. Respondent also contends that we should affirm because petitioner sued for damages but is at most entitled to an injunction ordering that his permit issue without any conditions. But we need not decide whether federal law authorizes plaintiffs to recover damages for unconstitutional conditions claims predicated on the Takings Clause because petitioner brought his claim under state law. Florida law allows property owners to sue for “damages” whenever a state agency’s action is “an unreasonable ex- ercise of the state’s police power constituting a taking without just compensation.” Fla. Stat. Ann. §373.617. Whether that provision covers an unconstitutional conditions claim like the one at issue here is a question of state law that the Florida Supreme Court did not address and on which we will not opine. For similar reasons, we decline to reach respondent’s argument that its demands for property were too indefinite to give rise to liability under Nollan and Dolan. The Florida Supreme Court did not reach the question whether respondent issued a demand of sufficient concreteness to trigger the special protections of Nollan and Dolan. It relied instead on the Florida District Court of Appeals’ characterization of respondent’s behavior as a demand for Nollan/Dolan purposes. See 77 So. 3d, at 1224 (quoting 5 So. 3d, at 10). Whether that characterization is correct is beyond the scope of the questions the Court agreed to take up for review. If preserved, the issue remains open on remand for the Florida Supreme Court to address. This Court therefore has no occasion to consider how concrete and specific a demand must be to give rise to liability un- der Nollan and Dolan. Finally, respondent argues that we need not decide whether its demand for offsite improvements satisfied Nollan and Dolan because it gave petitioner another avenue for obtaining permit approval. Specifically, respondent said that it would have approved a revised permit application that reduced the footprint of petitioner’s proposed construction site from 3.7 acres to 1 acre and placed a conservation easement on the remaining 13.9 acres of petitioner’s land. Respondent argues that regardless of whether its demands for offsite mitigation satisfied Nollan and Dolan, we must separately consider each of petitioner’s options, one of which did not require any of the offsite work the trial court found objectionable. Respondent’s argument is flawed because the option to which it points—developing only 1 acre of the site and granting a conservation easement on the rest—involves the same issue as the option to build on 3.7 acres and perform offsite mitigation. We agree with respondent that, so long as a permitting authority offers the landowner at least one alternative that would satisfy Nollan and Dolan, the landowner has not been subjected to an unconstitutional condition. But respondent’s suggestion that we should treat its offer to let petitioner build on 1 acre as an alternative to offsite mitigation misapprehends the gov- ernmental benefit that petitioner was denied. Petitioner sought to develop 3.7 acres, but respondent in effect told petitioner that it would not allow him to build on 2.7 of those acres unless he agreed to spend money improving public lands. Petitioner claims that he was wrongfully denied a permit to build on those 2.7 acres. For that reason, respondent’s offer to approve a less ambitious building project does not obviate the need to determine whether the demand for offsite mitigation satisfied Nollan and Dolan. III We turn to the Florida Supreme Court’s alternative holding that petitioner’s claim fails because respondent asked him to spend money rather than give up an easement on his land. A predicate for any unconstitutional conditions claim is that the government could not have constitutionally ordered the person asserting the claim to do what it attempted to pressure that person into doing. See Rumsfeld, 547 U. S., at 59–60. For that reason, we began our analysis in both Nollan and Dolan by observing that if the government had directly seized the easements it sought to obtain through the permitting process, it would have committed a per se taking. See Dolan, 512 U. S., at 384; Nollan, 483 U. S., at 831. The Florida Su- preme Court held that petitioner’s claim fails at this first step because the subject of the exaction at issue here was money rather than a more tangible interest in real prop- erty. 77 So. 3d, at 1230. Respondent and the dissent take the same position, citing the concurring and dissenting opinions in Eastern Enterprises v. Apfel, 524 U. S. 498 (1998) , for the proposition that an obligation to spend money can never provide the basis for a takings claim. See post, at 5–8 (opinion of Kagan, J.). We note as an initial matter that if we accepted this argument it would be very easy for land-use permitting officials to evade the limitations of Nollan and Dolan. Because the government need only provide a permit applicant with one alternative that satisfies the nexus and rough proportionality standards, a permitting authority wishing to exact an easement could simply give the owner a choice of either surrendering an easement or making a payment equal to the easement’s value. Such so-called “in lieu of” fees are utterly commonplace, Rosenberg, The Changing Culture of American Land Use Regulation: Paying for Growth with Impact Fees, 59 S. M. U. L. Rev. 177, 202–203 (2006), and they are functionally equivalent to other types of land use exactions. For that reason and those that follow, we reject respondent’s argument and hold that so-called “monetary exactions” must satisfy the nexus and rough proportionality requirements of Nollan and Dolan. A In Eastern Enterprises, supra, the United States retroactively imposed on a former mining company an obligation to pay for the medical benefits of retired miners and their families. A four-Justice plurality concluded that the statute’s imposition of retroactive financial liability was so arbitrary that it violated the Takings Clause. Id., at 529–537. Although Justice Kennedy concurred in the result on due process grounds, he joined four other Justices in dissent in arguing that the Takings Clause does not apply to government-imposed financial obligations that “d[o] not operate upon or alter an identified property interest.” Id., at 540 (opinion concurring in judgment and dissenting in part); see id., at 554–556 (Breyer, J., dissenting) (“The ‘private property’ upon which the [Takings] Clause traditionally has focused is a specific interest in physical or intellectual property”). Relying on the concurrence and dissent in Eastern Enterprises, respondent argues that a requirement that petitioner spend money improving public lands could not give rise to a taking. Respondent’s argument rests on a mistaken premise. Unlike the financial obligation in Eastern Enterprises, the demand for money at issue here did “operate upon . . . an identified property interest” by directing the owner of a particular piece of property to make a monetary payment. Id., at 540 (opinion of Kennedy, J.). In this case, unlike Eastern Enterprises, the monetary obligation burdened petitioner’s ownership of a specific parcel of land. In that sense, this case bears resemblance to our cases holding that the government must pay just compensation when it takes a lien—a right to receive money that is secured by a particular piece of property. See Armstrong v. United States, 364 U. S. 40 –49 (1960); Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555 –602 (1935); United States v. Security Industrial Bank, 459 U. S. 70 –78 (1982); see also Palm Beach Cty. v. Cove Club Investors Ltd., 734 So. 2d 379, 383–384 (1999) (the right to receive income from land is an interest in real property under Florida law). The fulcrum this case turns on is the direct link between the government’s demand and a spe- cific parcel of real property. [ 2 ] Because of that direct link, this case implicates the central concern of Nollan and Dolan: the risk that the government may use its substantial power and discretion in land-use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed new use of the specific property at issue, thereby diminishing without justification the value of the property. In this case, moreover, petitioner does not ask us to hold that the government can commit a regulatory taking by directing someone to spend money. As a result, we need not apply Penn Central’s “essentially ad hoc, factual inquir[y],” 438 U. S., at 124, at all, much less extend that “already difficult and uncertain rule” to the “vast category of cases” in which someone believes that a regulation is too costly. Eastern Enterprises, 524 U. S., at 542 (opinion of Kennedy, J.). Instead, petitioner’s claim rests on the more limited proposition that when the government commands the relinquishment of funds linked to a specific, identifiable property interest such as a bank account or parcel of real property, a “per se [takings] approach” is the proper mode of analysis under the Court’s precedent. Brown v. Legal Foundation of Wash., 538 U. S. 216, 235 (2003) . Finally, it bears emphasis that petitioner’s claim does not implicate “normative considerations about the wisdom of government decisions.” Eastern Enterprises, 524 U. S., at 545 (opinion of Kennedy, J.). We are not here concerned with whether it would be “arbitrary or unfair” for respondent to order a landowner to make improvements to public lands that are nearby. Id., at 554 (Breyer, J., dissenting). Whatever the wisdom of such a policy, it would transfer an interest in property from the landowner to the government. For that reason, any such demand would amount to a per se taking similar to the taking of an easement or a lien. Cf. Dolan, 512 U. S., at 384; Nollan, 483 U. S., at 831. B Respondent and the dissent argue that if monetary exactions are made subject to scrutiny under Nollan and Dolan, then there will be no principled way of distinguishing impermissible land-use exactions from property taxes. See post, at 9–10. We think they exaggerate both the extent to which that problem is unique to the land-use permitting context and the practical difficulty of distinguishing between the power to tax and the power to take by eminent domain. It is beyond dispute that “[t]axes and user fees . . . are not ‘takings.’ ” Brown, supra, at 243, n. 2 (Scalia, J., dissenting). We said as much in County of Mobile v. Kimball, 102 U. S. 691, 703 (1881) , and our cases have been clear on that point ever since. United States v. Sperry Corp., 493 U. S. 52 , n. 9 (1989); see A. Magnano Co. v. Hamilton, 292 U. S. 40, 44 (1934) ; Dane v. Jackson, 256 U. S. 589, 599 (1921) ; Henderson Bridge Co. v. Henderson City, 173 U. S. 592 –615 (1899). This case therefore does not affect the ability of governments to impose property taxes, user fees, and similar laws and regulations that may impose financial burdens on property owners. At the same time, we have repeatedly found takings where the government, by confiscating financial obligations, achieved a result that could have been obtained by imposing a tax. Most recently, in Brown, supra, at 232, we were unanimous in concluding that a State Supreme Court’s seizure of the interest on client funds held in escrow was a taking despite the unquestionable constitutional propriety of a tax that would have raised exactly the same revenue. Our holding in Brown followed from Phillips v. Washington Legal Foundation, 524 U. S. 156 (1998) , and Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155 (1980) , two earlier cases in which we treated confiscations of money as takings despite their functional similarity to a tax. Perhaps most closely analogous to the present case, we have repeatedly held that the government takes property when it seizes liens, and in so ruling we have never considered whether the government could have achieved an economically equivalent result through taxation. Armstrong, 364 U. S. 40 ; Louisville Joint Stock Land Bank, 295 U. S. 555 . Two facts emerge from those cases. The first is that the need to distinguish taxes from takings is not a creature of our holding today that monetary exactions are subject to scrutiny under Nollan and Dolan. Rather, the problem is inherent in this Court’s long-settled view that property the government could constitutionally demand through its taxing power can also be taken by eminent domain. Second, our cases show that teasing out the difference between taxes and takings is more difficult in theory than in practice. Brown is illustrative. Similar to respondent in this case, the respondents in Brown argued that extending the protections of the Takings Clause to a bank account would open a Pandora’s Box of constitutional chal- lenges to taxes. Brief for Respondents Washington Legal Foundation et al. 32 and Brief for Respondent Justices of the Washington Supreme Court 22, in Brown v. Legal Foundation of Wash., O. T. 2002, No. 01–1325. But also like respondent here, the Brown respondents never claimed that they were exercising their power to levy taxes when they took the petitioners’ property. Any such argument would have been implausible under state law; in Washington, taxes are levied by the legislature, not the courts. See 538 U. S., at 242, n. 2 (Scalia, J., dissenting). The same dynamic is at work in this case because Flor- ida law greatly circumscribes respondent’s power to tax. See Fla. Stat. Ann. §373.503 (authorizing respondent to impose ad valorem tax on properties within its jurisdiction); §373.109 (authorizing respondent to charge permit application fees but providing that such fees “shall not exceed the cost . . . for processing, monitoring, and inspecting for compliance with the permit”). If respondent had argued that its demand for money was a tax, it would have effectively conceded that its denial of petitioner’s permit was improper under Florida law. Far from making that concession, respondent has maintained throughout this litigation that it considered petitioner’s money to be a substitute for his deeding to the public a conservation easement on a larger parcel of undeveloped land. [ 3 ] This case does not require us to say more. We need not decide at precisely what point a land-use permitting charge denominated by the government as a “tax” becomes “so arbitrary . . . that it was not the exertion of taxation but a confiscation of property.” Brushaber v. Union Pacific R. Co., 240 U. S. 1 –25 (1916). For present purposes, it suffices to say that despite having long recognized that “the power of taxation should not be confused with the power of eminent domain,” Houck v. Little River Drainage Dist., 239 U. S. 254, 264 (1915) , we have had little trouble distinguishing between the two. C Finally, we disagree with the dissent’s forecast that our decision will work a revolution in land use law by depriving local governments of the ability to charge reasonable permitting fees. Post, at 8. Numerous courts—including courts in many of our Nation’s most populous States—have confronted constitutional challenges to monetary exactions over the last two decades and applied the standard from Nollan and Dolan or something like it. See, e.g., Northern Ill. Home Builders Assn. v. County of Du Page, 165 Ill. 2d. 25, 31–32, 649 N. E. 2d 384, 388–389 (1995); Home Builders Assn. v. Beavercreek, 89 Ohio St. 3d 121, 128, 729 N. E. 2d 349, 356 (2000); Flower Mound, 135 S. W. 3d, at 640–641. Yet the “significant practical harm” the dissent predicts has not come to pass. Post, at 8. That is hardly surprising, for the dissent is correct that state law normally provides an independent check on excessive land use permitting fees. Post, at 11. The dissent criticizes the notion that the Federal Constitution places any meaningful limits on “whether one town is overcharging for sewage, or another is setting the price to sell liquor too high.” Post, at 9. But only two pages later, it identifies three constraints on land use permitting fees that it says the Federal Constitution imposes and suggests that the additional protections of Nollan and Dolan are not needed. Post, at 11. In any event, the dissent’s argument that land use permit applicants need no further protection when the government demands money is really an argument for overruling Nollan and Dolan. After all, the Due Process Clause protected the Nollans from an unfair allocation of public burdens, and they too could have argued that the government’s demand for property amounted to a taking under the Penn Central framework. See Nollan, 483 U. S., at 838. We have repeatedly rejected the dissent’s contention that other constitutional doctrines leave no room for the nexus and rough proportionality requirements of Nollan and Dolan. Mindful of the special vulnerability of land use permit applicants to extortionate demands for money, we do so again today. * * * We hold that the government’s demand for property from a land-use permit applicant must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money. The Court expresses no view on the merits of petitioner’s claim that respondent’s actions here failed to comply with the principles set forth in this opinion and those two cases. The Florida Supreme Court’s judgment is reversed, and this case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 For ease of reference, this opinion refers to both men as “petitioner.” 2 Thus, because the proposed offsite mitigation obligation in this case was tied to a particular parcel of land, this case does not implicate the question whether monetary exactions must be tied to a particular parcel of land in order to constitute a taking. That is so even whenthe demand is considered “outside the permitting process.” Post, at 8 (Kagan, J., dissenting). The unconstitutional conditions analysis requires us to set aside petitioner’s permit application, not his ownership of a particular parcel of real property. 3 Citing cases in which state courts have treated similar governmental demands for money differently, the dissent predicts that courts will “struggle to draw a coherent boundary” between taxes and excessive demands for money that violate Nollan and Dolan. Post, at 9–10. But the cases the dissent cites illustrate how the frequent need to decide whether a particular demand for money qualifies as a tax under state law, and the resulting state statutes and judicial precedents on point, greatly reduce the practical difficulty of resolving the same issue in federal constitutional cases like this one.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus KOONTZ v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT certiorari to the supreme court of florida No. 11–1447. Argued January 15, 2013—Decided June 25, 2013 Coy Koontz, Sr., whose estate is represented here by petitioner, sought permits to develop a section of his property from respondent St. Johns River Water Management District (District), which, consistent with Florida law, requires permit applicants wishing to build on wetlands to offset the resulting environmental damage. Koontz offered to mitigate the environmental effects of his development proposal by deeding to the District a conservation easement on nearly three-quarters of his property. The District rejected Koontz’s proposal and informed him that it would approve construction only if he (1) reduced the size of his development and, inter alia, deeded to the District a conservation easement on the resulting larger remainder of his property or (2) hired contractors to make improvements to District-owned wetlands several miles away. Believing the District’s demands to be excessive in light of the environmental effects his proposal would have caused, Koontz filed suit under a state law that provides money damages for agency action that is an “unreasonable exercise of the state’s police power constituting a taking without just compensation.” The trial court found the District’s actions unlawful because they failed the requirements of Nollan v. California Coastal Comm’n, 483 U.S. 825, and Dolan v. City of Tigard, 512 U.S. 374. Those cases held that the government may not condition the approval of a land-use permit on the owner’s relinquishment of a portion of his property unless there is a nexus and rough proportionality between the government’s demand and the effects of the proposed land use. The District Court of Appeal affirmed, but the State Supreme Court reversed on two grounds. First, it held that petitioner’s claim failed because, unlike in Nollan or Dolan, the District denied the application. Second, the State Supreme Court held that a demand for money cannot give rise to a claim under Nollan and Dolan. Held: 1. The government’s demand for property from a land-use permit applicant must satisfy the Nollan/Dolan requirements even when it denies the permit. . (a) The unconstitutional conditions doctrine vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up, and Nollan and Dolan represent a special application of this doctrine that protects the Fifth Amendment right to just compensation for property the government takes when owners apply for land-use permits. The standard set out in Nollan and Dolan reflects the danger of governmental coercion in this context while accommodating the government’s legitimate need to offset the public costs of development through land use exactions. Dolan, supra, at 391; Nollan, supra, at 837. . (b) The principles that undergird Nollan and Dolan do not change depending on whether the government approves a permit on the condition that the applicant turn over property or denies a permit because the applicant refuses to do so. Recognizing such a distinction would enable the government to evade the Nollan/Dolan limitations simply by phrasing its demands for property as conditions precedent to permit approval. This Court’s unconstitutional conditions cases have long refused to attach significance to the distinction between conditions precedent and conditions subsequent. See, e.g., Frost & Frost Trucking Co. v. Railroad Comm’n of Cal., 271 U.S. 583, 592–593. It makes no difference that no property was actually taken in this case. Extortionate demands for property in the land-use permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation. Nor does it matter that the District might have been able to deny Koontz’s application outright without giving him the option of securing a permit by agreeing to spend money improving public lands. It is settled that the unconstitutional conditions doctrine applies even when the government threatens to withhold a gratuitous benefit. See e.g., United States v. American Library Assn., Inc., 539 U.S. 194, 210. . (c) The District concedes that the denial of a permit could give rise to a valid Nollan/Dolan claim, but urges that this Court should not review this particular denial because Koontz sued in the wrong court, for the wrong remedy, and at the wrong time. Most of its arguments raise questions of state law. But to the extent that respondent alleges a federal obstacle to adjudication of petitioner’s claim, the Florida courts can consider respondent’s arguments in the first instance on remand. Finally, the District errs in arguing that because it gave Koontz another avenue to obtain permit approval, this Court need not decide whether its demand for offsite improvements satisfied Nollan and Dolan. Had Koontz been offered at least one alternative that satisfied Nollan and Dolan, he would not have been subjected to an unconstitutional condition. But the District’s offer to approve a less ambitious project does not obviate the need to apply Nollan and Dolan to the conditions it imposed on its approval of the project Koontz actually proposed. . 2. The government’s demand for property from a land-use permit applicant must satisfy the Nollan/Dolan requirements even when its demand is for money. . (a) Contrary to respondent’s argument, Eastern Enterprises v. Apfel, 524 U.S. 498, where five Justices concluded that the Takings Clause does not apply to government-imposed financial obligations that “d[o] not operate upon or alter an identified property interest,” id., at 540 (Kennedy, J., concurring in judgment and dissenting in part), does not control here, where the demand for money did burden the ownership of a specific parcel of land. Because of the direct link between the government’s demand and a specific parcel of real property, this case implicates the central concern of Nollan and Dolan: the risk that the government may deploy its substantial power and discretion in land-use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed use of the property at issue. . (b) The District argues that if monetary exactions are subject to Nollan/Dolan scrutiny, then there will be no principled way of distinguishing impermissible land-use exactions from property taxes. But the District exaggerates both the extent to which that problem is unique to the land-use permitting context and the practical difficulty of distinguishing between the power to tax and the power to take by eminent domain. It is beyond dispute that “[t]axes and user fees . . . are not ‘takings,’ ” Brown v. Legal Foundation of Wash., 538 U.S. 216, 243, n. 2, yet this Court has repeatedly found takings where the government, by confiscating financial obligations, achieved a result that could have been obtained through taxation, e.g., id., at 232. . (c) The Court’s holding that monetary exactions are subject to scrutiny under Nollan and Dolan will not work a revolution in land use law or unduly limit the discretion of local authorities to implement sensible land use regulations. The rule that Nollan and Dolan apply to monetary exactions has been the settled law in some of our Nation’s most populous States for many years, and the protections of those cases are often redundant with the requirements of state law. . 77 So. 3d 1220, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Kagan, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.

In 1972, petitioner purchased an undeveloped tract of land on the south side of a divided four-lane highway in Orlando, Florida. The property is located less than 1,000 feet from the intersection with a tolled expressway that is one of Orlando's major thoroughfares. In 1984, in an effort to protect the State's diminishing wetlands, the Florida Legislature passed the Warren S. Henderson Wetlands Protection Act, which made it illegal for anyone to fill in, on, or over sur- face waters without a Wetlands Resource Management (WRM) permit. Under the Act, applicants wishing to undertake such construction must obtain from the relevant district a Management and Storage of Surface Water (MSSW) permit, which may impose such reasonable conditions as are necessary to assure that construction will not be harmful to the district water resources. Petitioner applied to the District for a MSSW permit, but the District denied his application because he refused to yield. The Florida District Court of Appeal reversed, holding the District's actions unlawful under Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), which held that a unit of government may not condition the approval of a land-use permit on the owner's relinquishment of a portion of his property unless there is a nexus and rough proportionality between the government's demand and the effects of the proposed land use. Held: The Florida Supreme Court erred in ruling that petitioner was entitled to relief under Fla. Stat. §373.617(2), which allows owners to recover monetary damages if a state agency's action is an unreasonable exercise of the state's police power constituting a taking without just compensation. . (a) Petitioner is especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits, because the government often has broad discretion to deny a permit that is worth far more than property it would like to take. So long as the building permit is more valuable than any just compensation the owner could hope to receive for the right-of-way, the owner is likely to accede to the government s demand, no matter how unreasonable. As in other unconstitutional condi- tions cases in which someone refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of a governmental benefit is a constitutionally cog- nizable injury. Nor does it make a difference that the government might have been able to deny petitioner a permit outright without giving him the option of securing a permit by agreeing to spend money to improve public lands. Pp. 468 U. s. 516. (b) Here, the proposed offsite mitigation obligation in this case was tied to a particular parcel of land, and this case does not implicate the question whether monetary exactions must be tied to that parcel in order to constitute a taking. That is so even whenthe demand is considered outside the permitting process. See, e.g., Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Trust Fund, 427 So. 2d 153, 159. P.. (c) The government may choose whether and how a per- mit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough- proportionality to those impacts. See Nollans v. Calvert City of Los Angeles,,. This case therefore does not affect the ability of governments to impose property taxes, user fees, and similar laws and regulations that may impose financial burdens on property owners. At the same time, the government, by confiscating financial obligations, may use its substantial power and discretion to take property that is secured by a particular piece of property. In this case, however, the seizure of petitioner's interest on the option to build on the 1-acre site was a taking despite the fact that the trial court found it objectionable. Moreover, the possibility that the landowner would have been denied a permit to develop the 2.7 acres does not obviate the need to determine whether the demand for offsite remedial was satisfied. To the extent that respondent suggests that the posture of this case creates some federal obstacle to adjudicating petitioner's unconstitutional conditions claim, this Court declines to second-guess a State Supreme Court's treatment of its own procedural law. Cf. Eastern Enterprises, supra, at 546. Although petitioner sued for damages, it is at most entitled to an injunction ordering that his permit issue without any conditions. However, federal law authorizes plaintiffs to recover damages for unconstitutional conditions claims predicated on the Takings Clause of the Fourteenth Amendment. Respondent argues that a requirement that petitioner spend money improving public lands could not give rise to a taking, since the government need only provide a permit applicant with one alternative

2012_11-1351

https://www.oyez.org/cases/2012/11-1351

.[1]* Petitioner Steven Alan Levin, a veteran, suffered injuries as a result of cataract surgery performed at the U. S. Naval Hospital in Guam. He asserts that, just prior to the operation, concern about equipment in the operating room led him to withdraw his consent to the surgery. Seeking compensation from the United States, Levin sued under the Federal Tort Claims Act (FTCA), 28 U. S. C. §§1346(b), 2671–2680, which waives the Government’s sovereign immunity from tort suits, but excepts from the waiver certain intentional torts, including battery, §2680(h). Levin relied on the Gonzalez Act, 10 U. S. C. §1089, which makes the remedy against the United States under the FTCA preclusive of any suit against armed forces medical personnel, §1089(a). In the provision at issue in this case, §1089(e), the Gonzalez Act declares that, “[f]or purposes of” the Act, the intentional tort exception to the FTCA “shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical . . . functions.” The Government reads §1089(e) simply to shore up §1089(a)’s immunization of medical personnel against tort liability. Levin, in contrast, reads §1089(e) to establish his right to bring a claim of medical battery against the United States under the FTCA without encountering the intentional tort exception. The U. S. District Court for the District of Guam, affirmed by the Ninth Circuit, dismissed Levin’s battery claim based on the reading of the Gonzalez Act proffered by the Government. We find the Government’s reading strained, and Levin’s, far more compatible with the text and purpose of the federal legislation. We therefore reverse the Ninth Circuit’s judgment. I A The FTCA, enacted in 1946, “was designed primarily to remove the sovereign immunity of the United States from suits in tort.” Richards v. United States, 369 U.S. 1, 6 (1962). The Act gives federal district courts exclusive jurisdiction over claims against the United States for “injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission” of federal employees acting within the scope of their employment. 28 U. S. C. §1346(b)(1). Substantively, the FTCA makes the United States liable “to the same extent as a private individual under like circumstances,” §2674, under the law of the place where the tort occurred, §1346(b)(1), subject to enumerated exceptions to the immunity waiver, §§2680(a)–(n). The exception relevant in this case is §2680(h), which, inter alia, preserves the Government’s immunity from suit on “[a]ny claim arising out of . . . battery.” We have referred to §2680(h) as the “intentional tort exception.” E.g., United States v. Shearer, 473 U.S. 52, 54 (1985).[2] Originally, the FTCA afforded tort victims a remedy against the United States, but did not preclude lawsuits against individual tortfeasors. See Henderson v. Blue- mink, 511 F.2d 399, 404 (CADC 1974). Judgment against the United States in an FTCA action would bar a sub- sequent action against the federal employee whose conduct gave rise to the claim, 28 U. S. C. §2676, but plaintiffs were not obliged to proceed exclusively against the Government. They could sue as sole or joint defendants federal employees alleged to have acted tortiously in the course of performing their official duties. In time, Congress enacted a series of agency-specific statutes designed to shield precisely drawn classes of employees from the threat of personal liability. United States v. Smith, 499 U.S. 160, 170 (1991). One such measure was the Medical Malpractice Immunity Act, 90Stat. 1985, 10 U. S. C. §1089, passed in 1976 and com- monly known as the Gonzalez Act.[3] That Act, controlling in this case, makes claims against the United States under the FTCA the “exclusive” remedy for injuries resulting from malpractice committed by medical personnel of the armed forces and other specified agencies. 10 U. S. C. §1089(a).[4] A subsection of the Gonzalez Act key to the issue before us, §1089(e), refers to the FTCA’s intentional tort exception. It provides: “For purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions.” Section 1089(e) was patterned on a provision in a statute, enacted six years earlier, that conferred immunity on medical personnel of the Public Health Service. See 84Stat. 1870, 42 U. S. C. §233(e) (1976 ed.) (“For purposes of this section, the provisions of [§2680(h)] shall not apply to assault or battery arising out of negligence in the performance of medical . . . functions.”). Targeted immunity statutes enacted around the same time as the Gonzalez Act similarly shielded medical personnel employed by specific agencies. See supra, at 3, n. 2. Each such measure contained a provision resembling §1089(e). See 22 U. S. C. §2702(e) (“For purposes of this section, the provisions of [§2680(h)], shall not apply to any tort enumerated therein arising out of negligence in the furnishing of medical care or related services.”); 38 U. S. C. §7316(f) (“The exception provided in [§2680(h)] shall not apply to any claim arising out of a negligent or wrongful act or omission of any person described in subsection (a) in furnishing medical care or treatment . . . while in the exercise of such person’s duties in or for the Administration.”); 51 U. S. C. §20137(e) (“For purposes of this section, the provisions of [§2680(h)] shall not apply to any cause of action arising out of a negligent or wrong- ful act or omission in the performance of medical . . . functions.”). In 1988, departing from the above-described agency-specific approach, Congress enacted comprehensive legislation titled the Federal Employees Liability Reform and Tort Compensation Act (Liability Reform Act), 102Stat. 4563, and often called the Westfall Act. This embracive measure makes the remedy against the United States under the FTCA exclusive for torts committed by federal employees acting within the scope of their employment, 28 U. S. C. §2679(b)(1). Shielding all federal employees from personal liability without regard to agency affiliation or line of work, the personal immunity provision of the Liability Reform Act tracks the text of §1089(a). The comprehensive enactment, however, did not repeal the Gonzalez Act, Smith, 499 U. S., at 172, or, presumably, any of the other laws covering medical personnel employed at particular agencies. Unlike the Gonzalez Act and kindred statutes, the Liability Reform Act does not reference, as §1089(e) does, the FTCA’s intentional tort exception, 28 U. S. C. §2680(h). B The petitioner, Steven Alan Levin, a veteran, was diagnosed with a cataract in his right eye. He sought treatment at the United States Naval Hospital in Guam and was evaluated by Lieutenant Commander Frank Bishop, M. D., an ophthalmologist serving in the U. S. Navy. Dr. Bishop recommended that Levin undergo “phacoemulsification with intraocular lens placement,” a surgical procedure involving extraction of the cataract and insertion of an artificial replacement lens. Levin signed forms consenting to the operation, which took place on March 12, 2003. Shortly before the surgery began, Levin alleges, he orally withdrew his consent twice, but Dr. Bishop con- ducted the operation nevertheless. Due to complications oc- curring while the surgery was underway, Levin developed corneal edema, a condition that left him with diminished eyesight, discomfort, problems with glare and depth-of-field vision, and in need of ongoing medical treatment. Levin sought compensation for the untoward results of the surgery. After exhausting administrative remedies, he commenced a civil action in the U. S. District Court for the District of Guam. Naming the United States and Dr. Bishop as defendants, Levin asserted claims of battery, based on his alleged withdrawal of consent to the surgery, and negligence, based on alleged flaws in Dr. Bishop’s performance of the operation. Accepting the Government’s representation that Dr. Bishop was acting within the scope of his employment while performing the surgery, the District Court granted the Government’s motion to release Dr. Bishop and substitute the United States as sole defendant. When Levin failed to produce expert testimony in support of his negligence allegations, the court granted the Government’s motion for summary judgment on that claim. Next, the Government moved to dismiss the battery claim. The District Court no longer had jurisdiction over Levin’s case, the Government argued, because the FTCA’s intentional tort exception, §2680(h), disallows suits against the United States for battery. Levin countered that the Gonzalez Act, in particular, §1089(e), renders the intentional tort exception inapplicable when a plaintiff alleges medical battery by an armed forces physician. The District Court rejected Levin’s plea and granted the Government’s motion to dismiss for lack of subject-matter jurisdiction. App. to Pet. for Cert. 14a–41a. On appeal to the Ninth Circuit, Levin did not question the adverse judgment on his negligent performance claim, but he renewed the argument that the battery claim, based on his alleged withdrawal of consent, survived. That was so, he maintained, because §1089(e) negated §2680(h), the FTCA’s intentional tort exception. The Court of Appeals thought Levin’s construction of the Gonzalez Act “plausible,” but “not the best reading of the statute.” 663 F.3d 1059, 1062 (2011). As perceived by the Ninth Circuit, §1089(e) had a limited office, serving only to buttress the immunity from personal liability granted military medical personnel in §1089(a). “[C]lever tort plaintiffs,” the court conjectured, might argue in future cases that because the FTCA does not authorize battery claims against the United States, such claims may be asserted against military doctors notwithstanding §1089(a). Ibid. Section 1089(e) foreclosed that argument, but the provision did nothing more, the court concluded. Satisfied that §1089(e) served the dominant purpose of the Gonzalez Act—to immunize covered medical personnel against malpractice liability—and did not unequivocally waive the United States’ sovereign immunity from battery claims, the Ninth Circuit affirmed the District Court’s disposition.[5] We granted certiorari, 567 U. S. ___ (2012), recognizing that Courts of Appeals have divided on the question whether the controlling provision of the Gonzalez Act, §1089(e), authorizes battery claims against the United States when military doctors operate without the patient’s consent. Compare 663 F. 3d, at 1063 (case below), with Keir v. United States, 853 F.2d 398, 409–410 (CA6 1988) (§1089(e) waives sovereign immunity for battery suits alleging malpractice by military medical personnel); and Lojuk v. Quandt, 706 F.2d 1456, 1463 (CA7 1983) (same). See also Franklin v. United States, 992 F.2d 1492, 1501 (CA10 1993) ( 38 U. S. C. §7316(f), concerning Department of Veterans Affairs’ medical personnel, includes an “es- sentially identical counterpart” to §1089(e), which sim- ilarly “nullif[ies] §2680(h) and thereby expand[s] the injured party’s remedy against the government under the FTCA”).[6] II A We note at the outset that medical malpractice claims may be based on negligence, in which case the FTCA’s waiver of the Government’s sovereign immunity is not in doubt. See 28 U. S. C. §1346(b)(1); supra, at 2. Or they may be based on alleged lack of consent, therefore qualifying as batteries. Whether the Government’s immunity is waived for such claims depends on the meaning of 10 U. S. C. §1089(e). See supra, at 4. In determining the meaning of a statute, “we look first to its language, giving the words used their ordinary meaning.” Moskal v. United States, 498 U.S. 103, 108 (1990) (citation and internal quotation marks omitted). The provision of the Gonzalez Act at issue, §1089(e), has two components: an introductory clause and an operative clause. The introductory clause prefaces §1089(e) with “[f]or purposes of this section.” The operative clause instructs that 28 U. S. C. §2680(h), the FTCA’s intentional tort exception, “shall not apply to any cause of action arising out of . . . negligent or wrongful” conduct taken “in the performance of medical, dental or related health care functions.” §1089(e). We set out below the parties’ dueling constructions of §1089(e). Levin reads §1089(e) to negate §2680(h) for battery claims involving medical personnel of the armed forces and other specified agencies. He trains first on the operative clause of §1089(e), which contains this direc- tive: The intentional tort exception to the FTCA “shall not apply” to claims alleging medical malpractice. But, he points out, if left unqualified, the operative clause would expose the United States to liability for medical malpractice committed by federal employees across all agencies. The introductory clause, Levin maintains, supplies the qualification: It confines the operative clause to claims covered by “this section,” i.e., claims alleging malpractice by personnel in the armed forces and the other agencies specified in the Gonzalez Act. Because Levin’s claim concerning Dr. Bishop’s alleged battery fits that category, Levin concludes, he may sue to recover from the United States. The Government, in contrast, reads §1089(e)’s introductory clause as instructing courts to pretend, “[f]or purposes of” the Gonzalez Act, that §2680(h) does not secure the Government against liability for intentional torts, including battery, even though §2680(h) does provide that shelter. Congress included this counterfactual instruction in the Gonzalez Act, the Government successfully argued in the Ninth Circuit, “to guard against the negative inference that, if no remedy against the United States were available for a medical battery claim, a remedy against an individual defendant must exist.” Brief for United States 8. Warding off this mistaken inference, the Government asserts, §1089(e) eliminates any doubt that the military medical personnel covered by §1089(a) are personally immune from malpractice liability. Ensuring that immunity, the Government reminds us, was the very purpose of the Gonzalez Act. The choice between these alternative readings of §1089(e) is not difficult to make. Section §1089(e)’s operative clause states, in no uncertain terms, that the intentional tort exception to the FTCA, §2680(h), “shall not apply,” and §1089(e)’s introductory clause confines the abrogation of §2680(h) to medical personnel employed by the agencies listed in the Gonzalez Act.[7] The Government invites us to read the phrase “section 2680(h) . . . shall not apply,” to convey “§2680(h) does apply,” a reading most unnatural. Had Congress wanted to guard against any inference that individual employees may be liable, despite §1089(a)’s statement that the remedy against the United States is exclusive, see supra, at 4, n. 3, Congress might have stated, “subsection (a) applies even when §2680(h) precludes recovery against the United States under the FTCA.” Or, Congress might have provided that §2680(h) shall be “deemed” or “considered” inapplicable, a formulation commonly employed to direct courts to make counterfactual assumptions. See, e.g., 7 U. S. C. §7283(b) (“For purposes of this section, raw cane sugar, refined beet sugar, and in-process sugar eligible for a loan . . . shall not be considered an agricultural commodity.”); 15 U. S. C. §78o–11(e)(3)(B) (2006 ed., Supp. V) (“For purposes of this subsection, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, and the Federal home loan banks shall not be considered an agency of the United States.”); 42 U. S. C. §416(b) (“For purposes of subparagraph (C) of section 402(b)(1) of this title, a divorced wife shall be deemed not to be married throughout the month in which she becomes divorced.”). We note, furthermore, that in 10 U. S. C. §1089(c), a subsection of the Gonzalez Act adjacent to §1089(e), Congress used the counterfactual formulation absent in §1089(e). Section 1089(c) provides that certain actions brought against military employees acting within the scope of their employment “shall be . . . deemed a tort action brought against the United States under the provisions of title 28.” See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (“[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (internal quotation marks omitted)). B Were we to accept the Government’s interpretation of §1089(e), the Liability Reform Act would displace much of the Gonzalez Act. To explain why this is so, we describe the situation before the Court in United States v. Smith, 499 U.S. 160. Smith presented the question whether persons injured abroad due to a military doctor’s negligence may seek compensation in a U. S. court from the doctor who caused the injury. Because the FTCA excludes from the Government’s waiver of immunity “[a]ny claim arising in a foreign country,” 28 U. S. C. §2680(k), the plaintiffs in Smith had no remedy against the United States. They also lacked recourse to a suit in this country against the doctor, the Government urged, for the Liability Reform Act made “[t]he remedy against the United States” under the FTCA “exclusive of any other civil action.” §2679(b)(1). Were that the case, the plaintiffs responded, the Liability Reform Act would effectively repeal the Gonzalez Act. See Brief for Respondents in Smith, O. T. 1990, No. 89–1646, pp. 33–46. In particular, they observed, 10 U. S. C. §1089(f)(1) authorizes the head of an agency to indemnify military doctors “assigned to a foreign country” whose negligent conduct injures a patient. But the indemnification provision would have no work to do, the plaintiffs argued, if the Liability Reform Act foreclosed suit against the doctor. Not so, the Government responded. The Gonzalez Act would continue to serve two important functions. First, §1089(f)(1) would authorize indemnification of individual military doctors sued abroad where foreign law, rather than the FTCA, might govern. Brief for United States in Smith 34 (citing Powers v. Schultz, 821 F.2d 295, 297–298 (CA5 1987)). Second, the Gonzalez Act would allow an FTCA suit against the United States if the doctor’s malpractice ranked as “intentional,” i.e., if he performed a procedure to which the plaintiff did not consent. See Brief for United States in Smith 32–34; Reply Brief in Smith 12 (“[T]he provision of the Gonzalez Act waiving sovereign immunity as to medical malpractice claims sounding in intentional tort, 10 U. S. C. §1089(e), will enable plaintiffs to pursue those claims against the United States.”). Thus, the Government told this Court, “in view of the continued need for the provisions of the Gonzalez Act even after the enactment of the [Liability] Reform Act, leaving that statute on the books was an entirely sensible drafting decision.” Id., at 13. Adopting the Government’s construction of the Liability Reform Act, we held in Smith that §2679(b)(1) grants all federal employees, including medical personnel, immunity for acts within the scope of their employment, even when an FTCA exception (such as §2680(k)) left the plaintiff without a remedy against the United States. 499 U. S., at 166. Our decision in Smith was thus informed by the Government’s position that the Gonzalez Act would remain “ ‘an operative part of the integrated statutory scheme.’ ” Reply Brief in Smith 12 (quoting United States v. Fausto, 484 U.S. 439, 453 (1988)). The Government now disavows the reading of §1089(e) it advanced in Smith. See Brief for United States 24, n. 8. Under its current reading, the Liability Reform Act does indeed override the Gonzalez Act save in two slim applications: If a military doctor employed by the United States is sued in a foreign court, or is detailed to a non-federal institution, indemnification of the doctor under §1089(f)(1) would remain possible. See id., at 26. Under Levin’s reading of §1089(e), the Gonzalez Act does just what the Government said that legislation did in briefing Smith: It renders §2680(h) inapplicable to medical batteries committed by military personnel within the scope of their employment, thereby permitting civil actions against the United States by persons situated as Levin is. C Endeavoring to inject ambiguity into §1089(e) notwithstanding its direction that “section 2680(h) . . . shall not apply,” the Government refers to 38 U. S. C. §7316, a parallel statute that confers immunity on medical personnel of the Department of Veterans Affairs (VA). As enacted in 1965, §7316’s statutory predecessor had no provision akin to §1089(e). See 79Stat. 1156, 38 U. S. C. §4116 (1970 ed.). Congress added such a provision in 1988, but it was not a carbon copy of §1089(e). In particular, the new provision did not include the words that preface §1089(e). It reads: “The exception provided in section 2680(h) of title 28 shall not apply to any claim arising out of a negligent or wrongful act or omission of any person described in subsection (a) of this section in furnishing medical care or treatment.” 38 U. S. C. §7316(f). This phrasing, which refers to “any person described in [§7316(a)]”—i.e., any “health care employee of the” VA—does indeed express Congress’ intent to abrogate §2680(h), the Government acknowledges. But §7316(f) does so, the Government adds, with the unmistakable clarity the Gonzalez Act lacks. We see nothing dispositively different about the word- ing of the two provisions.[8] Neither did the Government earlier on. In the District Court, the Government argued that §1089(e) and §7316(f) are functionally indistinguishable. See Record 366 (“§1089(e) has language that is identical to . . . §7316(f)”); id., at 435 (“originally [Levin] talked about the doctor being under the VA; in fact, the doctor is a Navy doctor, but the statute is exactly the same”); id., at 447–448 (Dr. Bishop was “[n]ot an employee of the VA[,] . . . [but] it’s an academic argument because the exact same language [appears in] §1089(e)”). We agree with the Government’s earlier view, and not with the freshly minted revision. * * * For the reasons stated, we hold that the Gonzalez Act direction in 10 U. S. C. §1089(e) abrogates the FTCA’s intentional tort exception and therefore permits Levin’s suit against the United States alleging medical battery by a Navy doctor acting within the scope of his employment. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 * Justice Scalia joins this opinion, except as to footnotes 6 and 7. 2 This shorthand description is not entirely accurate. Section 2680(h) does not remove from the FTCA’s waiver all intentional torts, e.g., conversion and trespass, and it encompasses certain torts, e.g., misrepresentation, that may arise out of negligent conduct. See United States v. Neustadt, 366 U.S. 696, 702 (1961). 3 The agency-specific statutes were patterned on the Federal Drivers Act, 75Stat. 539, 28 U. S. C. §§2679(b)–(e) (1970 ed.), passed in 1961 and amended in 1988 by Pub. L. 100–694, §5(b), 102Stat. 4564. The Drivers Act made an action against the United States under the FTCA the “exclusive” remedy for “personal injury . . . resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment.” §2679(b). Statutes conferring immunity on medical personnel of the Department of Veterans Affairs, 79Stat. 1156, 38 U. S. C. §4116 (1970 ed.), now codified at 38 U. S. C. §7316 (2006 ed.), and the Public Health Service, 84Stat. 1870, 42 U. S. C. §233 (2006 ed.), followed in 1965 and 1970, respectively. In 1976, in addition to the Gonzalez Act, Congress enacted a statute immunizing medical personnel of the National Aeronautics and Space Administration, 90Stat. 1988, 42 U. S. C. §2458a (1982 ed.), now codified at 51 U. S. C. §20137 (2006 ed., Supp. IV). And in 1980, it enacted a personal immunity statute covering medical personnel of the Department of State, 94Stat. 2155, 22 U. S. C. §2702 (2006 ed.). 4 In full, §1089(a) reads: “The remedy against the United States provided by sections 1346(b) and 2672 of title 28 for damages for personal injury, including death, caused by the negligent or wrongful act or omission of any physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (including medical and dental technicians, nursing assistants, and therapists) of the armed forces, the National Guard while engaged in training or duty under section 316, 502, 503, 504, or 505 of title 32, the Department of Defense, the Armed Forces Retirement Home, or the Central Intelligence Agency in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope of his duties or employment therein or therefor shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or the estate of such person) whose act or omission gave rise to such action or proceeding. This subsection shall also apply if the physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or the estate of such person) involved is serving under a personal services contract entered into under section 1091 of this title.” 5 In accord with the Ninth Circuit, the Government maintains that sovereign immunity is never waived absent unequivocal congressional statement to that effect. See Brief for United States 14–15 (citing FAA v. Cooper, 566 U. S. ___, ___ (2012) (slip op., at 5)); United States v. Bormes, 568 U. S. ___, ___ (2012) (slip op., at 4). Levin, on the other hand, urges that, in view of the FTCA’s sweeping waiver of immunity, §1346(b)(1), exceptions to that waiver, contained in §2680, should not be accorded an unduly generous interpretation. See Brief for Court-Appointed Amicus Curiae in Support of Petitioner 40 (citing Dolan v. Postal Service, 546 U.S. 481, 492 (2006)). We need not settle this dispute. For the reasons stated, infra this page and 9–14, we conclude that §1089(e) meets the unequivocal waiver standard. 6 We appointed James A. Feldman to brief and argue the position of the petitioner as amicus curiae. 568 U. S. ___ (2012). Amicus Feldman has ably discharged his assigned responsibilities and the Court thanks him for his well stated arguments. 7 Corroborating this plain reading, the Senate Report on the Gonzalez Act explains that §1089(e) was enacted to “nullify a provision of the Federal Tort Claims Act which would otherwise exclude any action for assault and battery” from FTCA coverage. S. Rep. No. 94–1264, p. 9 (1976). 8 See S. Rep. No. 100–215, p. 171 (1987) (§7316(f) was “patterned after” §1089(e)).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus LEVIN v. UNITED STATES et al. certiorari to the united states court of appeals for the ninth circuit No. 11–1351. Argued January 15, 2013—Decided March 4, 2013 The Federal Tort Claims Act (FTCA) waives the Government’s sovereign immunity from tort suits, 28 U. S. C. §1346(b)(1), but excepts from the waiver certain intentional torts, including battery, §2680(h). The FTCA, as originally enacted, afforded tort victims a remedy against the United States, but did not preclude suit against the alleged tortfeasor as sole or joint defendant. Several agency-specific statutes postdating the FTCA, however, immunized certain federal employees from personal liability for torts committed in the course of their official duties. One such statute, the Gonzalez Act, makes the remedy against the United States under the FTCA preclusive of any suit against armed forces medical personnel. 10 U. S. C. §1089(a). The Act also provides that, “[f]or purposes of this section,” the intentional tort exception to the FTCA “shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical . . . functions.” §1089(e). Congress subsequently enacted comprehensive legislation, the Federal Employees Liability Reform and Tort Compensation Act (Liability Reform Act), which makes the FTCA’s remedy against the United States exclusive for torts committed by federal employees acting within the scope of their employment, 28 U. S. C. §2679(b)(1). Under the Liability Reform Act, federal employees are shielded without regard to agency affiliation or line of work. Petitioner Levin suffered injuries as a result of cataract surgery performed at a U. S. Naval Hospital. He filed suit, naming the United States and the surgeon as defendants and asserting, inter alia, a claim of battery, based on his alleged withdrawal of consent to operate shortly before the surgery took place. Finding that the surgeon had acted within the scope of his employment, the District Court released him and substituted the United States as sole defendant. The Government moved to dismiss the battery claim, relying on the FTCA’s intentional tort exception. Levin countered that the Gonzalez Act, in particular, §1089(e), renders that exception inapplicable when a plaintiff alleges medical battery by a military physician. The District Court granted the Government’s motion to dismiss. Affirming, the Ninth Circuit concluded that §1089(e) served only to buttress the immunity from personal liability granted military medical personnel in §1089(a), and did not negate the FTCA’s intentional tort exception. Held: The Gonzalez Act direction in §1089(e) abrogates the FTCA’s intentional tort exception and therefore permits Levin’s suit against the United States alleging medical battery by a Navy doctor acting within the scope of his employment. . (a) To determine whether the Government’s immunity is waived for batteries, the Court looks to §1089(e)’s language, “giving the ‘words used’ their ‘ordinary meaning.’ ” Moskal v. United States, 498 U.S. 103, 108. Levin claims that the operative clause of §1089(e), which provides that the FTCA’s intentional tort exception “shall not apply” to medical malpractice claims, is qualified by the provision’s introductory clause “[f]or purposes of this section,” which confines the operative clause to claims alleging malpractice by personnel in the armed forces and the other agencies specified in the Gonzalez Act. The Government, in contrast, argues that §1089(e)’s introductory clause instructs courts to pretend, “[f]or purposes of” the Gonzalez Act, that §2680(h) does not secure the Government against liability for intentional torts, including battery, even though §2680(h) does provide that shelter. The choice between the parties’ dueling constructions is not a difficult one. Section 1089(e)’s operative clause states, in no uncertain terms, that the FTCA’s intentional tort exception, §2680(h), “shall not apply,” and §1089(e)’s introductory clause confines the abrogation of §2680(h) to medical personnel employed by the agencies listed in the Gonzalez Act. Had Congress wanted to adopt the Government’s counterfactual interpretation, it could have used more precise language, as it did in §1089(c), a subsection adjacent to §1089(e). . (b) Under the Government’s interpretation of §1089(e), the Liability Reform Act would displace much of the Gonzalez Act. That reading conflicts with the view the Government stated in United States v. Smith, 499 U.S. 160. There, the question was whether a person injured abroad due to a military doctor’s negligence may seek compensation from the doctor in a U. S. court, for the FTCA gave them no recourse against the Government on a “claim arising in a foreign country,” 28 U. S. C. §2680(k). In arguing that such persons also lacked recourse to a suit against the doctor, the Government contended that the Liability Reform Act made “[t]he remedy against the United States” under the FTCA “exclusive.” §2679(b)(1). This interpretation, the Government argued, would not override the Gonzalez Act, which would continue to serve two important functions: Title 10 U. S. C. §1089(f)(1) would authorize indemnification of individual military doctors sued abroad where foreign law might govern; and the Gonzalez Act would allow an FTCA suit against the United States if the doctor performed a procedure to which the plaintiff did not consent. Adopting the Government’s construction, the Court held that §2679(b)(1) grants all federal employees, including medical personnel, immunity for acts within the scope of their employment, even when the FTCA provides no remedy against the United States. 499 U. S., at 166. Under the Government’s current reading of §1089(e), the Liability Reform Act overrides the Gonzalez Act except in the atypical circumstances in which indemnification of the doctor under §1089(f)(1) remains possible, while under Levin’s reading, the Gonzalez Act does just what the Government said it did in Smith. . (c) The Government attempts to inject ambiguity into §1089(e) by claiming that 38 U. S. C. §7316, a parallel statute that confers immunity on medical personnel of the Department of Veterans Affairs, expresses Congress’ intent to abrogate §2680(h) with the unmistakable clarity the Gonzalez Act lacks. But this Court sees nothing dispositively different about the wording of the two provisions, and neither did the Government when it argued in the District Court that §1089(e) and §7316(f) are functionally indistinguishable. . 663 F.3d 1059, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, which was unanimous except insofar as Scalia, J., did not join footnotes 6 and 7.

Petitioner, a veteran, sought compensation from the United States under the Federal Tort Claims Act (FTCA), which waives the Government's sovereign immunity from tort suits, but excepts from the waiver certain intentional torts, including battery. Petitioner relied on the Gonzalez Act, 10 U.S. C. §1089, which makes the remedy against the Government under the FTCA preclusive of any suit against armed forces medical personnel. Section1089(e) declares that, "[f]or purposes of [§2680(h)] shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical... functions...." Section1089 (e) was patterned on a provision in a statute, enacted six years earlier, that conferred immunity on medical personnel employed by specific agencies. The Gonzalez Act declares that its intentional tort exception, §2680 (h), will not apply. Petitioner then filed suit in Federal District Court, alleging that he orally withdrew his consent twice, but the District Court con- ducted the operation nevertheless, and that he developed corneal edema, a condition that left him with diminished eyesight, discomfort, problems with glare and depth-of-field vision, and in need of ongoing medical treatment. After exhausting administrative remedies, petitioner brought a civil action against the defendants as defendants, asserting claims based on his alleged withdrawal of consent based on the alleged flaws in the surgery. Accepting the Government as the sole substitute for the Government, the court granted summary judgment for petitioner, rejecting his renewed argument that the battery claim survived. In contrast, the Government moved to dismiss on the ground that the intentional tort exception rendered the exception inapplicable when a plaintiff alleges medical battery by an armed forces physician. The District Court rejected petitioner's plea and granted the Government a motion to dismiss for lack of subject-matter jurisdiction. The Court of Appeals affirmed. Held: 1. The Gonzalez Act direction in 10 U U. S.C. §1189(h) abrogates the FTCAs intentional tort exception and permits petitioner to bring a claim of medical battery against the United States under that Act without encountering that exception. . (a) Medical malpractice claims may be based on negligence, such as in this case, and thus qualify as batteries. Whether the Government immunity is waived for such claims depends on the meaning of §1088(e). That provision has two components: (1) an introductory clause and an operative clause, and (2) a clause prefacing the latter clause with the operative clause. The introductory clause precludes the Government from suing as sole or joint defendants federal employees alleged to have acted tortiously in the course of performing their official duties, thereby permitting civil actions against United States by persons situated as petitioner is. P.. (b) Petitioner has ably discharged his assigned responsibilities, and the Court thanks him for his well stated arguments. See, e.g., Moskal v. United States, 498 U. C. 103, 108 (1990). Moreover, under Levin, the Gonzalez Act does just what the Government said that legislation did in briefing Smith: It renders §2679(b)(1), which is the predecessor of the Gonzalez, in that it confers immunity on military personnel, in the scope of their employment, thus permitting civil action by persons such as petitioner. However, the language of that section does not include a provision akin to the one in 2680(e), and the legislative history of that statute indicates that it did not include such a provision. Moreover, the phrasing of the two provisions does not express Congress' intent to abrogate §26 80(h), which, in fact, refers to any person described in that section in furnishing medical care or treatment, and does not secure the Government against liability for an intentional tort, even though it does provide that shelter. Thus, in view of the sweeping waiver of immunity contained in §1346(b), which authorizes indemnification of individual military doctors sued abroad where foreign law, rather than the Federal Trade Administration, might govern, it is not necessary to guard against any inference that individual employees may be liable, despite the Government statement that the remedy is exclusive. Nor is it necessary to rely on the generalized formulation that Congress included in the Gonzalez act to make counterfactual assumptions. Under Levin, however, his interpretation of §1289(c), a subsection adjacent to his, is unpersuasive, since it renders the section in question in Smith, which expressly confers on the Government the right to sue as a sole defendant in a suit against a federal employee for medical battery committed by military personnel of the Armed Forces. Although, in contrast to the Government in its earlier version, §1209(e)'s phrasing refers to a person described medical

2012_11-460

https://www.oyez.org/cases/2012/11-460

. The Court granted review in this case limited to a single question: Under the Clean Water Act (CWA), 86 Stat. 816, as amended, 33 U. S. C. §1251 et seq., does the flow of water out of a concrete channel within a river rank as a “discharge of a pollutant”? In this Court, the parties and the United States as amicus curiae agree that the answer to this question is “no.” They base this accord on South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109–112 (2004), in which we accepted that pumping polluted water from one part of a water body into another part of the same body is not a discharge of pol- lutants under the CWA. Adhering to the view we took in Miccosukee, we hold that the parties correctly answered the sole question presented in the negative. The decision in this suit rendered by the Court of Appeals for the Ninth Circuit is inconsistent with our determination. We therefore reverse that court’s judgment. Petitioner Los Angeles County Flood Control District (District) operates a “municipal separate storm sewer system” (MS4)—a drainage system that collects, transports, and discharges storm water. See 40 CFR §122.26(b)(8) (2012). See also §122.26(b)(13) (“Storm water means storm water runoff, snow melt runoff, and surface runoff and drainage.”). Because storm water is often heavily polluted, see 64 Fed. Reg. 68724–68727 (1999), the CWA and its implementing regulations require the operator of an MS4 serving a population of at least 100,000 to obtain a National Pollutant Discharge Elimination System (NPDES) permit before discharging storm water into navigable waters. See 33 U. S. C. §§1311(a), 1342(p)(2)(C), and (D); 40 CFR §§122.26(a)(3), (b)(4), (b)(7). The District first obtained a NPDES permit for its MS4 in 1990; thereafter, the permit was several times renewed. Natural Resources Defense Council, Inc. v. County of Los Angeles, 673 F.3d 880, 886 (CA9 2011). Respondents Natural Resources Defense Council, Inc. (NRDC) and Santa Monica Baykeeper (Baykeeper) filed a citizen suit against the District and several other defendants under §505 of the CWA, 33 U. S. C. §1365. They alleged, among other things, that water-quality measurements from monitoring stations located within the Los Angeles and San Gabriel Rivers demonstrated that the District was violating the terms of its permit. The District Court granted summary judgment to the District on these claims. It was undisputed, the District Court acknowledged, that “data from the Los Angeles River and San Gabriel River [monitoring] stations indicate[d] that water quality standards ha[d] repeatedly been exceeded for a number of pollutants, including aluminum, copper, cyanide, fecal coliform bacteria, and zinc.” App. to Pet. for Cert. 108. But numerous entities other than the District, the court added, discharge into the rivers upstream of the monitoring stations. See id., at 115–116. See also 673 F. 3d, at 889 (observing that the pollutants of “thousands of permitted dischargers” reach the rivers). The record was insufficient, the District Court concluded, to warrant a finding that the District’s MS4 had discharged storm water containing the standards-exceeding pollutants detected at the downstream monitoring stations. The Ninth Circuit reversed in relevant part. The monitoring stations for the Los Angeles and San Gabriel Rivers, the Court of Appeals said, are located in “concrete channels” constructed for flood-control purposes. Id., at 900. See also id., at 889 (describing the monitoring stations’ location). Based on this impression, the Court of Appeals held that a discharge of pollutants occurred under the CWA when the polluted water detected at the monitoring stations “flowed out of the concrete channels” and entered downstream portions of the waterways lacking concrete linings. Id., at 900. Because the District exer- cises control over the concrete-lined portions of the rivers, the Court of Appeals held, the District is liable for the discharges that, in the appellate court’s view, occur when water exits those concrete channels. See id., at 899–901. We granted certiorari on the following question: Under the CWA, does a “discharge of pollutants” occur when polluted water “flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river,” and then “into a lower portion of the same river”? Pet. for Cert. i. See 567 U. S. ___ (2012). As noted above, see supra, at 1, the parties, as well as the United States as amicus curiae, agree that the answer to this question is “no.” That agreement is hardly surprising, for we held in Miccosukee that the transfer of polluted water between “two parts of the same water body” does not constitute a discharge of pollutants under the CWA. 541 U. S., at 109–112. We derived that determination from the CWA’s text, which defines the term “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source.” 33 U. S. C. §1362(12) (emphasis added). Under a common understanding of the meaning of the word “add,” no pollutants are “added” to a water body when water is merely transferred between different portions of that water body. See Webster’s Third New International Dictionary 24 (2002) (“add” means “to join, annex, or unite (as one thing to another) so as to bring about an increase (as in number, size, or importance) or so as to form one aggregate”). “As the Second Circuit [aptly] put it . . . , ‘[i]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not “added” soup or anything else to the pot.’ ” Miccosukee, 541 U. S., at 109–110 (quoting Catskill Mountains Chapter of Trout Unlimited, Inc. v. New York, 273 F.3d 481, 492 (CA2 2001)). In Miccosukee, polluted water was removed from a ca- nal, transported through a pump station, and then de- posited into a nearby reservoir. 541 U. S., at 100. We held that this water transfer would count as a discharge of pollutants under the CWA only if the canal and the reservoir were “meaningfully distinct water bodies.” Id., at 112. It follows, a fortiori, from Miccosukee that no discharge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another. We hold, therefore, that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants under the CWA. Because the decision below cannot be squared with that holding, the Court of Appeals’ judgment must be reversed.[1] The NRDC and Baykeeper urge that the Court of Appeals reached the right result, albeit for the wrong reason. The monitoring system proposed by the District and written into its permit showed numerous instances in which water-quality standards were exceeded. Under the permit’s terms, the NRDC and Baykeeper maintain, the ex- ceedances detected at the instream monitoring stations are by themselves sufficient to establish the District’s liability under the CWA for its upstream discharges. See Brief for Respondents 33–62.[2] This argument failed below. See 673 F. 3d, at 898, 901; App. to Pet. for Cert. 100–102. It is not embraced within, or even touched by, the narrow question on which we granted certiorari. We therefore do not address, and indicate no opinion on, the issue the NRDC and Baykeeper seek to substitute for the question we took up for review. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded. It is so ordered. Justice Alito concurs in the judgment. Notes 1 The NRDC, Baykeeper, and the United States contend—contrary to the District—that the Court of Appeals understood that no discharge of pollutants occurs when water flows from an improved into an unimproved portion of a navigable waterway. They suggest that the Court of Appeals misperceived the facts, erroneously believing that the monitoring stations for the Los Angeles and San Gabriel Rivers “were sampling water from a portion of the MS4 that was distinct from the rivers themselves and from which discharges through an outfall to the rivers subsequently occurred.” Brief for United States as Amicus Curiae 18. See also Brief for Respondents 30–31 (“The court of appeals’ statements suggest it believed the monitoring stations sampled polluted stormwater from the District’s MS4 before, not after, discharge to the Los Angeles and San Gabriel Rivers.”). Whatever the source of the Court of Appeals’ error, all parties agree that the court’s analysis was erroneous. 2 Shortly before oral argument in this case, a renewed permit was approved for the District’s MS4. Unlike the District’s prior permit, which required only instream monitoring, the renewed permit requires end-of-pipe monitoring at individual MS4 discharge points. See id., at 20–21; Reply Brief 5, n. 2.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus LOS ANGELES COUNTY FLOOD CONTROL DISTRICT v. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al. certiorari to the united states court of appeals for the ninth circuit No. 11–460. Argued December 4, 2012—Decided January 8, 2013 Petitioner Los Angeles County Flood Control District (District) operates a “municipal separate storm sewer system” (MS4), a drainage system that collects, transports, and discharges storm water. Because storm water is often heavily polluted, the Clean Water Act (CWA) and its implementing regulations require certain MS4 operators to obtain a National Pollutant Discharge Elimination System (NPDES) permit before discharging storm water into navigable waters. The District has such a permit for its MS4. Respondents Natural Resources Defense Council, Inc. (NRDC) and Santa Monica Baykeeper (Baykeeper) filed a citizen suit against the District and others under §505 of the CWA, 33 U. S. C. §1365, alleging, among other things, that water-quality measurements from monitoring stations within the Los Angeles and San Gabriel Rivers demonstrated that the District was violating the terms of its permit. The District Court granted summary judgment to the District on these claims, concluding that the record was insufficient to warrant a finding that the MS4 had discharged storm water containing the standards-exceeding pollutants detected at the downstream monitoring stations. The Ninth Circuit reversed in relevant part. The court held that the District was liable for the discharge of pollutants that, in the court’s view, occurred when the polluted water detected at the monitoring stations flowed out of the concrete-lined portions of the rivers, where the monitoring stations are located, into lower, unlined portions of the same rivers. Held: The flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a “discharge of a pollutant” under the CWA. See South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109–112 (holding that the transfer of polluted water between “two parts of the same water body” does not constitute a discharge of pollutants under the CWA). The Ninth Circuit’s decision cannot be squared with this holding. The NRDC and Baykeeper alternatively argue that, based on the terms of the District’s NPDES permit, the exceedances detected at the monitoring stations sufficed to establish the District’s liability under the CWA for its upstream discharges. This argument, which failed below, is not embraced within the narrow question on which certiorari was granted. The Court therefore does not address it. . 673 F.3d 880, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., concurred in the judgment.

Under the Clean Water Act (CWA), pumping polluted water from one part of a water body into another part of the same body is not a discharge of pol- lutants under the CWA. South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109-112 (CA9), held: 1. The parties, as amicus curiae, agree that the answer to the question whether the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge under that Act. . 2. The Court of Appeals correctly answered the sole question presented in the negative, and the decision in this suit is inconsistent with this Court. P.. 73 F.3d 880, reversed and remanded. Justice Department v. United States, 567 U. S. C. §1251 et seq. Appeal dismissed. Reported below: (a) The District Court granted summary judgment to the District Court on the claims that water-quality measurements from monitoring stations within the Los Angeles and San Gabriel Rivers showed that water quality standards had repeatedly been exceeded for a number of pollutants, but that numerous entities other than the District discharged into the rivers upstream of the monitoring stations. The record was insufficient, the court concluded, to warrant a finding that the District's MS4 had discharged storm water containing the standards-exceeding pollutants detected at the downstream monitoring stations; (b) The court held that the ex- ceedances detected at these stations were sufficient to establish the District as liable for its upstream discharges; and (c) the court erroneously held that pollutants from flowing polluted water through navigable channels in the rivers did not occur when one of the polluted channels exits a concrete channel or other engineered improvement, and then flows into a lower portion thereof. Respondents Natural Resources Defense Council, Inc. (NRDC) and Santa Monica Baykeeper (Baykeeper) filed a citizen suit against the District and several other defendants under §505, alleging, inter alia, that water pollution from monitoring station locations demonstrated that the district was violating the terms of its permit. The court granted summary judgment for the District on these claims. It was undisputed, however, that data from such stations indicated that water quality standards repeatedly had been exceeded, but numerous entities discharged into rivers upstream. The court concluded that no discharge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another, and that, therefore, no discharge occurs when the water flows from the improved portion to another. On appeal, the Court reversed in relevant part, holding that a showing of water quality readings at the instream monitoring stations was insufficient to establish liability for the downstream discharges, that the record was entirely erroneous, that discharge occurred from the polluted river flowing through the stations, that it was not polluted after discharge from the rivers, that, shortly before oral argument in this case, a renewed permit for petitioner District was approved for its MS4, which required end-of-pipe monitoring at individual MS4 discharge points. Held: The judgment below cannot be squared with that holding, and therefore the judgment of the Court of Appeals for the Ninth Circuit is reversed. Although the monitoring system proposed by the District was and written into its permit showed numerous instances in which water-fquality standards were exceeded, under the permit terms, the appellees maintain that ex- cumances detected by the stations are by themselves sufficient to show the District the District, and thus, by itself, its liability. This Court does not address, or even touch by, the narrow question on which certiorari was granted. See, e.g., 673 F. 3d, 898, 901; App. to Pet. for Cert. 100-102. Nor does this case address, and indicate no opinion on, the issue the NRDC and Baykeeper seek to substitute for, the question taken up for review. ,. (a) There is no merit to respondents' contention that the court of appeals erred in erroneously believing that water pollutants detected from the monitored stations were pollutants from rivers in the District. Whatever the source of the error, all parties agree on the court's erroneous analysis. That determination is derived from the Code of Civil Procedure, which defines the term "discharge of a pollutant" to mean any addition of any pollutant to navigable waters from any point source. Under a common understanding of the word word, no pollutants are added when water is merely transferred between different portions of that water body. See Webster's Third New International Dictionary 24 (2002) (emphasis added). And since no pollutant is added to a body merely by being removed from a pot, lifted above

2012_11-626

https://www.oyez.org/cases/2012/11-626

. The Rules of Construction Act defines a “vessel” as in- cluding “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U. S. C. §3. The question before us is whether petitioner’s floating home (which is not self-propelled) falls within the terms of that definition. In answering that question we focus primarily upon the phrase “capable of being used.” This term encompasses “practical” possibilities, not “merely . . . theoretical” ones. Stewart v. Dutra Constr. Co., 543 U.S. 481, 496 (2005). We believe that a reasonable observer, looking to the home’s physical characteristics and activities, would not consider it to be designed to any practical degree for carrying people or things on water. And we consequently conclude that the floating home is not a “vessel.” I In 2002 Fane Lozman, petitioner, bought a 60-foot by 12-foot floating home. App. 37, 71. The home consisted of a house-like plywood structure with French doors on three sides. Id., at 38, 44. It contained a sitting room, bedroom, closet, bathroom, and kitchen, along with a stairway leading to a second level with office space. Id., at 45–66. An empty bilge space underneath the main floor kept it afloat. Id., at 38. (See Appendix, infra, for a photograph.) After buying the floating home, Lozman had it towed about 200 miles to North Bay Village, Florida, where he moored it and then twice more had it towed between nearby marinas. In 2006 Lozman had the home towed a further 70 miles to a marina owned by the city of Riviera Beach (City), respondent, where he kept it docked. Brief for Respondent 5. After various disputes with Lozman and unsuccessful efforts to evict him from the marina, the City brought this federal admiralty lawsuit in rem against the floating home. It sought a maritime lien for dockage fees and damages for trespass. See Federal Maritime Lien Act, 46 U. S. C. §31342 (authorizing federal maritime lien against vessel to collect debts owed for the provision of “necessaries to a vessel”); 28 U. S. C. §1333(1) (civil admiralty jurisdiction). See also Leon v. Galceran, 11 Wall. 185 (1871); The Rock Island Bridge, 6 Wall. 213, 215 (1867). Lozman, acting pro se, asked the District Court to dismiss the suit on the ground that the court lacked admi- ralty jurisdiction. See 2 Record, Doc. 64. After summary judgment proceedings, the court found that the floating home was a “vessel” and concluded that admiralty jurisdiction was consequently proper. Pet. for Cert. 42a. The judge then conducted a bench trial on the merits and awarded the City $3,039.88 for dockage along with $1 in nominal damages for trespass. Id., at 49a. On appeal the Eleventh Circuit affirmed. Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, 649 F.3d 1259 (2011). It agreed with the District Court that the home was a “vessel.” In its view, the home was “capable” of movement over water and the owner’s subjective intent to remain moored “indefinitely” at a dock could not show the con- trary. Id., at 1267–1269. Lozman sought certiorari. In light of uncertainty among the Circuits about application of the term “capable” we granted his petition. Compare De La Rosa v. St. Charles Gaming Co., 474 F.3d 185, 187 (CA5 2006) (structure is not a “vessel” where “physically,” but only “theoretical[ly],” “capable of sailing,” and owner intends to moor it indef- initely as floating casino), with Board of Comm’rs of Or- leans Levee Dist. v. M/V Belle of Orleans, 535 F.3d 1299, 1311–1312 (CA11 2008) (structure is a “vessel” where capable of moving over water under tow, “albeit to her detriment,” despite intent to moor indefinitely). See also 649 F. 3d, at 1267 (rejecting views of Circuits that “ ‘focus on the intent of the shipowner’ ”). II At the outset we consider one threshold matter. The District Court ordered the floating home sold to satisfy the City’s judgment. The City bought the home at public auction and subsequently had it destroyed. And, after the parties filed their merits briefs, we ordered further briefing on the question of mootness in light of the home’s destruction. 567 U. S. ___ (2012). The parties now have pointed out that, prior to the home’s sale, the District Court ordered the City to post a $25,000 bond “to secure Mr. Lozman’s value in the vessel.” 1 Record, Doc. 20, p. 2. The bond ensures that Lozman can obtain monetary relief if he ultimately prevails. We consequently agree with the parties that the case is not moot. III A We focus primarily upon the statutory phrase “capable of being used . . . as a means of transportation on water.” 1 U. S. C. §3. The Court of Appeals found that the home was “capable” of transportation because it could float, it could proceed under tow, and its shore connections (power cable, water hose, rope lines) did not “ ‘rende[r]’ ” it “ ‘practically incapable of transportation or movement.’ ” 649 F. 3d, at 1266 (quoting Belle of Orleans, supra, at 1312, in turn quoting Stewart, 543 U. S., at 494). At least for argument’s sake we agree with the Court of Appeals about the last-mentioned point, namely that Lozman’s shore connections did not “ ‘render’ ” the home “ ‘practically incapable of transportation.’ ” But unlike the Eleventh Circuit, we do not find these considerations (even when combined with the home’s other characteristics) sufficient to show that Lozman’s home was a “vessel.” The Court of Appeals recognized that it had applied the term “capable” broadly. 649 F. 3d, at 1266. Indeed, it pointed with approval to language in an earlier case, Burks v. American River Transp. Co., 679 F.2d 69 (1982), in which the Fifth Circuit said: “ ‘No doubt the three men in a tub would also fit within our definition, and one probably could make a convincing case for Jonah inside the whale.’ ” 649 F. 3d, at 1269 (brackets omitted) (quoting Burks, supra, at 75). But the Eleventh Circuit’s interpretation is too broad. Not every floating structure is a “vessel.” To state the obvious, a wooden washtub, a plastic dishpan, a swimming platform on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not “vessels,” even if they are “artificial contrivance[s]” capable of floating, moving under tow, and incidentally carrying even a fair-sized item or two when they do so. Rather, the statute applies to an “artificial contrivance . . . capable of being used . . . as a means of transportation on water.” 1 U. S. C. §3 (emphasis added). “[T]ransportation” involves the “conveyance (of things or persons) from one place to another.” 18 Oxford English Dictionary 424 (2d ed. 1989) (OED). Accord, N. Webster, An American Dictionary of the English Language 1406 (C. Goodrich & N. Porter eds. 1873) (“[t]he act of transporting, carrying, or conveying from one place to another”). And we must apply this definition in a “practical,” not a “theoretical,” way. Stewart, supra, at 496. Consequently, in our view a structure does not fall within the scope of this statutory phrase unless a reasonable observer, looking to the home’s phys- ical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water. B Though our criterion is general, the facts of this case illustrate more specifically what we have in mind. But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water. It had no rudder or other steering mechanism. 649 F. 3d, at 1269. Its hull was unraked, ibid., and it had a rectangular bottom 10 inches below the water. Brief for Petitioner 27; App. 37. It had no special capacity to generate or store electricity but could obtain that utility only through ongoing connections with the land. Id., at 40. Its small rooms looked like ordinary nonmaritime living quarters. And those inside those rooms looked out upon the world, not through watertight portholes, but through French doors or ordinary windows. Id., at 44–66. Although lack of self-propulsion is not dispositive, e.g., The Robert W. Parsons, 191 U.S. 17, 31 (1903), it may be a relevant physical characteristic. And Lozman’s home differs significantly from an ordinary houseboat in that it has no ability to propel itself. Cf. 33 CFR §173.3 (2012) (“Houseboat means a motorized vessel . . . designed primarily for multi-purpose accommodation spaces with low freeboard and little or no foredeck or cockpit” (emphasis added)). Lozman’s home was able to travel over water only by being towed. Prior to its arrest, that home’s travel by tow over water took place on only four occasions over a period of seven years. Supra, at 2. And when the home was towed a significant distance in 2006, the towing company had a second boat follow behind to prevent the home from swinging dangerously from side to side. App. 104. The home has no other feature that might suggest a design to transport over water anything other than its own furnishings and related personal effects. In a word, we can find nothing about the home that could lead a reasonable observer to consider it designed to a practical degree for “transportation on water.” C Our view of the statute is consistent with its text, precedent, and relevant purposes. For one thing, the statute’s language, read naturally, lends itself to that interpretation. We concede that the statute uses the word “every,” referring to “every description of watercraft or other artificial contrivance.” 1 U. S. C. §3 (emphasis added). But the term “contrivance” refers to “something contrived for, or employed in contriving to effect a purpose.” 3 OED 850 (def. 7). The term “craft” explains that purpose as “water carriage and transport.” Id., at 1104 (def. V(9)(b)) (de- fining “craft” as a “vesse[l] . . . for” that purpose). The ad-dition of the word “water” to “craft,” yielding the term “watercraft,” emphasizes the point. And the next few words, “used, or capable of being used, as a means of transportation on water,” drive the point home. For another thing, the bulk of precedent supports our conclusion. In Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19 (1926), the Court held that a wharfboat was not a “vessel.” The wharfboat floated next to a dock; it was used to transfer cargo from ship to dock and ship to ship; and it was connected to the dock with cables, utility lines, and a ramp. Id., at 21. At the same time, it was capable of being towed. And it was towed each winter to a harbor to avoid river ice. Id., at 20–21. The Court reasoned that, despite the annual movement under tow, the wharfboat “was not used to carry freight from one place to another,” nor did it “encounter perils of navigation to which craft used for transportation are exposed.” Id., at 22. (See Appendix, infra, for photograph of a period wharfboat). The Court’s reasoning in Stewart also supports our conclusion. We there considered the application of the statutory definition to a dredge. 543 U. S., at 494. The dredge was “a massive floating platform” from which a suspended clamshell bucket would “remov[e] silt from the ocean floor,” depositing it “onto one of two scows” floating alongside the dredge. Id., at 484. Like more traditional “seagoing vessels,” the dredge had, e.g., “a captain and crew, navigational lights, ballast tanks, and a crew dining area.” Ibid. Unlike more ordinary vessels, it could navigate only by “manipulating its anchors and cables” or by being towed. Ibid. Nonetheless it did move. In fact it moved over water “every couple of hours.” Id., at 485. We held that the dredge was a “vessel.” We wrote that §3’s definition “merely codified the meaning that the term ‘vessel’ had acquired in general maritime law.” Id., at 490. We added that the question of the “watercraft’s use ‘as a means of transportation on water’ is . . . practical,” and not “merely . . . theoretical.” Id., at 496. And we pointed to cases holding that dredges ordinarily “served a waterborne transportation function,” namely that “in performing their work they carried machinery, equipment, and crew over water.” Id., at 491–492 (citing, e.g., Butler v. Ellis, 45 F.2d 951, 955 (CA4 1930)). As the Court of Appeals pointed out, in Stewart we also wrote that §3 “does not require that a watercraft be used primarily for that [transportation] purpose,” 543 U. S., at 495; that a “watercraft need not be in motion to qualify as a vessel,” ibid.; and that a structure may qualify as a vessel even if attached—but not “permanently” attached—to the land or ocean floor. Id., at 493–494. We did not take these statements, however, as implying a universal set of sufficient conditions for application of the definition. Rather, they say, and they mean, that the statutory definition may (or may not) apply—not that it automatically must apply—where a structure has some other primary purpose, where it is stationary at relevant times, and where it is attached—but not permanently attached—to land. After all, a washtub is normally not a “vessel” though it does not have water transportation as its primary purpose, it may be stationary much of the time, and it might be attached—but not permanently attached—to land. More to the point, water transportation was not the primary purpose of either Stewart’s dredge or Evansville’s wharfboat; neither structure was “in motion” at relevant times; and both were sometimes attached (though not permanently attached) to the ocean bottom or to land. Nonetheless Stewart’s dredge fell within the statute’s definition while Evansville’s wharfboat did not. The basic difference, we believe, is that the dredge was regularly, but not primarily, used (and designed in part to be used) to transport workers and equipment over water while the wharfboat was not designed (to any practical degree) to serve a transportation function and did not do so. Compare Cope v. Vallette Dry Dock Co., 119 U.S. 625 (1887) (floating drydock not a “vessel” because permanently fixed to wharf), with Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 535 (1995) (barge sometimes attached to river bottom to use as a work platform remains a “vessel” when “at other times it was used for transportation”). See also ibid. (citing Great Lakes Dredge & Dock Co. v. Chicago, 3 F.3d 225, 229 (CA7 1993) (“[A] craft is a ‘vessel’ if its purpose is to some reasonable degree ‘the transportation of passengers, cargo, or equipment from place to place across navigable waters’ ”)); Cope, supra, at 630 (describing “hopper-barge,” as potentially a “vessel” because it is a “navigable structure[,] used for the purpose of transportation”); cf. 1 Benedict on Admiralty §164, p. 10–6 (7th rev. ed. 2012) (maritime jurisdiction proper if “the craft is a navigable structure intended for maritime transportation”). Lower court cases also tend, on balance, to support our conclusion. See, e.g., Bernard v. Binnings Constr. Co., 741 F.2d 824, 828, n. 13, 832, n. 25 (CA5 1984) (work punt lacking features objectively indicating a transportation function not a “vessel,” for “our decisions make clear that the mere capacity to float or move across navigable waters does not necessarily make a structure a vessel”); Ruddiman v. A Scow Platform, 38 F. 158 (SDNY 1889) (scow, though “capable of being towed . . . though not without some difficulty, from its clumsy structure” just a floating box, not a “vessel,” because “it was not designed or used for the purpose of navigation,” not engaged “in the transportation of persons or cargo,” and had “no motive power, no rudder, no sails”). See also 1 T. Schoenbaum, Admi- ralty and Maritime Law §3–6, p. 155 (5th ed. 2011) (courts have found that “floating dry-dock[s],” “floating platforms, barges, or rafts used for construction or repair of piers, docks, bridges, pipelines and other” similar facilities are not “vessels”); E. Benedict, American Admiralty §215, p. 116 (3d rev. ed. 1898) (defining “vessel” as a “ ‘machine adapted to transportation over rivers, seas, and oceans’ ”). We recognize that some lower court opinions can be read as endorsing the “anything that floats” approach. See Miami River Boat Yard, Inc. v. 60’ Houseboat, 390 F.2d 596, 597 (CA5 1968) (so-called “houseboat” lacking self-propulsion); Sea Village Marina, LLC v. A 1980 Carlcraft Houseboat, No. 09–3292, 2009 WL 3379923, *5–*6 (D NJ, Oct. 19, 2009) (following Miami River Boat Yard); Hudson Harbor 79th Street Boat Basin, Inc. v. Sea Casa, 469 F. Supp. 987, 989 (SDNY 1979) (same). Cf. Holmes v. Atlantic Sounding Co., 437 F.3d 441 (CA5 2006) (floating dormitory); Summerlin v. Massman Constr. Co., 199 F.2d 715 (CA4 1952) (derrick anchored in the river engaged in building a bridge is a vessel). For the reasons we have stated, we find such an approach inappropriate and inconsistent with our precedents. Further, our examination of the purposes of major federal maritime statutes reveals little reason to classify floating homes as “vessels.” Admiralty law, for example, provides special attachment procedures lest a vessel avoid liability by sailing away. 46 U. S. C. §§31341–31343 (2006 ed. and Supp. IV). Liability statutes such as the Jones Act recognize that sailors face the special “ ‘perils of the sea.’ ” Chandris, Inc. v. Latsis, 515 U.S. 347, 354, 373 (1995) (referring to “ ‘vessel[s] in navigation’ ”). Certain admiralty tort doctrines can encourage shipowners to engage in port-related commerce. E.g., 46 U. S. C. §30505; Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 269–270 (1972). And maritime safety statutes subject vessels to U. S. Coast Guard inspections. E.g., 46 U. S. C. §3301. Lozman, however, cannot easily escape liability by sailing away in his home. He faces no special sea dangers. He does not significantly engage in port-related commerce. And the Solicitor General tells us that to adopt a version of the “anything that floats” test would place unneces- sary and undesirable inspection burdens upon the Coast Guard. Brief for United States as Amicus Curiae 29, n. 11. Finally, our conclusion is consistent with state laws in States where floating home owners have congregated in communities. See Brief for Seattle Floating Homes As- sociation et al. as Amici Curiae 1. A Washington State environmental statute, for example, defines a floating home (for regulatory purposes) as “a single-family dwelling unit constructed on a float, that is moored, anchored, or otherwise secured in waters, and is not a vessel, even though it may be capable of being towed.” Wash. Rev. Code Ann. §90.58.270(5)(b)(ii) (Supp. 2012). A California statute defines a floating home (for tax purposes) as “a floating structure” that is “designed and built to be used, or is modified to be used, as a stationary waterborne residential dwelling,” and which (unlike a typical houseboat), has no independent power generation, and is dependent on shore utilities. Cal. Health & Safety Code Ann. §18075.55(d) (West 2006). These States, we are told, treat structures that meet their “floating home” definitions like ordinary land-based homes rather than like vessels. Brief for Seattle Floating Homes Association 2. Consistency of interpretation of related state and federal laws is a virtue in that it helps to create simplicity making the law easier to understand and to follow for lawyers and for nonlawyers alike. And that consideration here supports our conclusion. D The City and supporting amici make several important arguments that warrant our response. First, they ar- gue against use of any purpose-based test lest we introduce into “vessel” determinations a subjective element—namely, the owner’s intent. That element, they say, is often “unverifiable” and too easily manipulated. Its introduction would “foment unpredictability and invite gamesmanship.” Brief for Respondent 33. We agree with the City about the need to eliminate the consideration of evidence of subjective intent. But we cannot agree that the need requires abandonment of all criteria based on “purpose.” Cf. Stewart, 543 U. S., at 495 (discussing transportation purpose). Indeed, it is difficult, if not impossible, to determine the use of a human “contrivance” without some consideration of human purposes. At the same time, we have sought to avoid subjective elements, such as owner’s intent, by permitting consideration only of objective evidence of a waterborne transportation purpose. That is why we have referred to the views of a reasonable observer. Supra, at 1. And it is why we have looked to the physical attributes and behavior of the structure, as objective manifestations of any relevant purpose, and not to the subjective intent of the owner. Supra, at 5–6. We note that various admiralty treatises refer to the use of purpose-based tests without any suggestion that administration of those tests has introduced too much subjectivity into the vessel-determination process. 1 Benedict on Admiralty §164; 1 Admiralty and Maritime Law §3–6. Second, the City, with support of amici, argues against the use of criteria that are too abstract, complex, or open-ended. Brief for Respondent 28–29. A court’s jurisdiction, e.g., admiralty jurisdiction, may turn on application of the term “vessel.” And jurisdictional tests, often applied at the outset of a case, should be “as simple as possible.” Hertz Corp. v. Friend, 559 U. S. ___, ___ (2010) (slip op., at 1). We agree with the last-mentioned sentiment. And we also understand that our approach is neither perfectly pre-cise nor always determinative. Satisfaction of a design-based or purpose-related criterion, for example, is not always sufficient for application of the statutory word “vessel.” A craft whose physical characteristics and activities objectively evidence a waterborne transportation purpose or function may still be rendered a nonvessel by later physical alterations. For example, an owner might take a structure that is otherwise a vessel (even the Queen Mary) and connect it permanently to the land for use, say, as a hotel. See Stewart, supra, at 493–494. Further, changes over time may produce a new form, i.e., a newly designed structure—in which case it may be the new de-sign that is relevant. See Kathriner v. Unisea, Inc., 975 F.2d 657, 660 (CA9 1992) (floating processing plant was no longer a vessel where a “large opening [had been] cut into her hull”). Nor is satisfaction of the criterion always a necessary condition, see Part IV, infra. It is conceivable that an owner might actually use a floating structure not designed to any practical degree for transportation as, say, a ferry boat, regularly transporting goods and persons over water. Nonetheless, we believe the criterion we have used, taken together with our example of its application here, should offer guidance in a significant number of borderline cases where “capacity” to transport over water is in doubt. Moreover, borderline cases will always exist; they require a method for resolution; we believe the method we have used is workable; and, unlike, say, an “anything that floats” test, it is consistent with statutory text, purpose, and precedent. Nor do we believe that the dissent’s approach would prove any more workable. For example, the dissent suggests a relevant distinction between an own- er’s “clothes and personal effects” and “large appliances (like an oven or a refrigerator).” Post, at 8 (opinion of Sotomayor, J.). But a transportation function need not turn on the size of the items in question, and we believe the line between items being transported from place to place (e.g., cargo) and items that are mere appurtenances is the one more likely to be relevant. Cf. Benedict, American Admiralty §222, at 121 (“A ship is usually described as consisting of the ship, her tackle, apparel, and furniture . . .”). Finally, the dissent and the Solicitor General (as amicus for Lozman) argue that a remand is warranted for further factfinding. See post, at 10–12; Brief for United States as Amicus Curiae 29–31. But neither the City nor Lozman makes such a request. Brief for Respondent 18, 49, 52. And the only potentially relevant factual dispute the dis- sent points to is that the home suffered serious damage during a tow. Post, at 10–11. But this would add support to our ultimate conclusion that this floating home was not a vessel. We consequently see nothing to be gained by a remand. IV Although we have focused on the phrase “capable of be- ing used” for transportation over water, the statute also includes as a “vessel” a structure that is actually “used” for that transportation. 1 U. S. C. §3 (emphasis added). And the City argues that, irrespective of its design, Lozman’s floating home was actually so used. Brief for Respondent 32. We are not persuaded by its argument. We are willing to assume for argument’s sake that sometimes it is possible actually to use for water transportation a structure that is in no practical way designed for that purpose. See supra, at 12–13. But even so, the City cannot show the actual use for which it argues. Lozman’s floating home moved only under tow. Before its arrest, it moved significant distances only twice in seven years. And when it moved, it carried, not passengers or cargo, but at the very most (giving the benefit of any factual ambiguity to the City) only its own furnishings, its owner’s personal effects, and personnel present to assure the home’s safety. 649 F. 3d, at 1268; Brief for Respondent 32; Tr. of Oral Arg. 37–38. This is far too little actual “use” to bring the floating home within the terms of the statute. See Evansville, 271 U. S., at 20–21 (wharfboat not a “vessel” even though “[e]ach winter” it “was towed to [a] harbor to protect it from ice”); see also Roper v. United States, 368 U.S. 20, 23 (1961) (“Unlike a barge, the S. S. Harry Lane was not moved in order to transport commodities from one location to another”). See also supra, at 6–11. V For these reasons, the judgment of the Court of Appeals is reversed. It is so ordered. APPENDIX Petitioner’s floating home. App. 69. 50- by 200-foot wharf boat in Evansville, Indiana, on Nov. 13, 1918. H. R. Doc. No. 1521, 65th Cong., 3d Sess., Illustration No. 13 (1918).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus LOZMAN v. CITY OF RIVIERA BEACH, FLORIDA certiorari to the united states court of appeals for the eleventh circuit No. 11–626. Argued October 1, 2012—Decided January 15, 2013 Petitioner Lozman’s floating home was a house-like plywood structure with empty bilge space underneath the main floor to keep it afloat. He had it towed several times before deciding on a marina owned by the city of Riviera Beach (City). After various disputes with Lozman and unsuccessful efforts to evict him from the marina, the City brought a federal admiralty lawsuit in rem against the floating home, seeking a lien for dockage fees and damages for trespass. Lozman moved to dismiss the suit for lack of admiralty jurisdiction. The District Court found the floating home to be a “vessel” under the Rules of Construction Act, which defines a “vessel” as including “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water,” 1 U. S. C. §3, concluded that admiralty jurisdiction was proper, and awarded the City dockage fees and nominal damages. The Eleventh Circuit affirmed, agreeing that the home was a “vessel” since it was “capable” of movement over water despite petitioner’s subjective intent to remain moored indefinitely. Held: 1. This case is not moot. The District Court ordered the floating home sold, and the City purchased the home at auction and had it destroyed. Before the sale, the court ordered the City to post a bond to ensure Lozman could obtain monetary relief if he prevailed. P. 3. 2. Lozman’s floating home is not a §3 “vessel.” . (a) The Eleventh Circuit found the home “capable of being used . . . as a means of transportation on water” because it could float and proceed under tow and its shore connections did not render it incapable of transportation. This interpretation is too broad. The definition of “transportation,” the conveyance of persons or things from one place to another, must be applied in a practical way. Stewart v. Dutra Constr. Co., 543 U.S. 481, 496. Consequently, a structure does not fall within the scope of the statutory phrase unless a reasonable observer, looking to the home’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water. . (b) But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water. It had no steering mechanism, had an unraked hull and rectangular bottom 10 inches below the water, and had no capacity to generate or store electricity. It also lacked self-propulsion, differing significantly from an ordinary houseboat. . (c) This view of the statute is consistent with its text, precedent, and relevant purposes. The statute’s language, read naturally, lends itself to that interpretation: The term “contrivance” refers to something “employed in contriving to effect a purpose”; “craft” explains that purpose as “water carriage and transport”; the addition of “water” to “craft” emphasizes the point; and the words, “used, or capable of being used, as a means of transportation on water,” drive the point home. Both Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19, and Stewart, supra, support this conclusion. Evansville involved a wharfboat floated next to a dock, used to transfer cargo, and towed to harbor each winter; and Stewart involved a dredge used to remove silt from the ocean floor, which carried a captain and crew and could be navigated only by manipulating anchors and cables or by being towed. Water transportation was not the primary purpose of either structure; neither was in motion at relevant times; and both were sometimes attached to the ocean bottom or to land. However, Stewart’s dredge, which was regularly, but not primarily, used to transport workers and equipment over water, fell within the statutory definition while Evansville’s wharfboat, which was not designed to, and did not, serve a transportation function, did not. Lower court cases, on balance, also tend to support this conclusion. Further, the purposes of major federal maritime statutes—e.g., admiralty provisions provide special attachment procedures lest a vessel avoid liability by sailing away, recognize that sailors face special perils at sea, and encourage shipowners to engage in port-related commerce—reveal little reason to classify floating homes as “vessels.” Finally, this conclusion is consistent with state laws in States where floating home owners have congregated in communities. . (d) Several important arguments made by the City and its amici are unavailing. They argue that a purpose-based test may introduce a subjective element into “vessel” determinations. But the Court has considered only objective evidence, looking to the views of a reasonable observer and the physical attributes and behavior of the structure. They also argue against using criteria that are too abstract, complex, or open-ended. While this Court’s approach is neither perfectly precise nor always determinative, it is workable and consistent and should offer guidance in a significant number of borderline cases. And contrary to the dissent’s suggestion, the Court sees nothing to be gained by a remand. . (e) The City’s additional argument that Lozman’s floating home was actually used for transportation over water is similarly unpersuasive. P. 14. 649 F.3d 1259, reversed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, Ginsburg, Alito, and Kagan, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Kennedy, J., joined.

Petitioner bought a 60-foot by 12-foot floating home consisting of a sitting room, bedroom, closet, bathroom, and kitchen, along with a stairway leading to a second level with office space. After purchasing the home, petitioner had it towed about 200 miles to a Florida marina owned by respondent, where it was towed 70 miles between nearby marinas. Respondent brought a federal admiralty lawsuit in rem against the floating home, seeking a maritime lien for dockage and damages for trespass. The District Court dismissed the suit on the ground that it lacked admi- ralty jurisdiction. The Court of Appeals affirmed, agreeing with the District Court that the home was a "vessel," in that it was capable of movement over water and the owner's subjective intent to remain moored "indefinitely" at a dock could not show the con- trary. Held: The case is not moot. . (a) The statutory phrase (1 U. S. C. §3) applies to any object capable of being used as a means of transportation on water. Although the statute uses the word "every," referring to any description of watercraft or other artificial contrivance, it defines a vessel as one capable of transporting, carrying, or conveying from one place to another. In a practical sense, the home falls within the definition. A reasonable observer, looking to the home's physical characteristics and activities, would not consider it to be designed to any practical degree for carrying people or things on water, and consequently it is not a vessel. Moreover, in a word, the term encompassespractical possibilities, not merely theoretical ones. There is nothing about the home that could lead a reasonable observer to consider it designed to a practical degree for transporting water or other than its own furnishings and related personal effects. Cf. Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co.,; cf. Stewart v. Dutra Constr. Co., 543 U.S. 481, 496. Pp. 468. (b) The statute also includes as a vessel that is actually used for that transportation. Not every floating structure is a vessel. Evansville, supra, at 494. While the ad-dition of the word “watercraft,” yielding the term watercraft, emphasizes the point, and the next few words, see, e.g., the term used in the statutory definition, drive the point home. Even if the term were too abstract, complex, or open-ended, the bulk of precedent supports the conclusion that a vessel is avessel even if it does not have water transportation as its primary purpose. Water transportation was not the primary purpose of either the dredge or the wharfboat. Neither structure was in motion at relevant times, and both were sometimes attached (though not permanently attached) to the ocean bottom or to land. But satisfaction of the criterion is not always a necessary condition, see Part IV, infra. Also consistent with state laws in States where floating home owners have congregated in communities. App. 69, 50- by 200-foot wharf boat in Indiana, on Nov. 13, 1918; H. R. Doc. No. 1521, 65th Cong., 3d Sess., Illustration No. 13 (1918). P.. 649 F.3d 1259, reversed and remanded.

2012_12-25

https://www.oyez.org/cases/2012/12-25

. Concerned that personal information collected by States in the licensing of motor vehicle drivers was being released—even sold—with resulting loss of privacy for many persons, Congress provided federal statutory protection. It enacted the Driver’s Privacy Protection Act of 1994, referred to here as the DPPA. See 18 U. S. C. §§2721–2725. The DPPA regulates the disclosure of personal information contained in the records of state motor vehicle de- partments (DMVs). Disclosure of personal information is prohibited unless for a purpose permitted by an ex-ception listed in 1 of 14 statutory subsections. See §§2721(b)(1)–(14). This case involves the interpretation of one of those exceptions, subsection (b)(4). The exception in (b)(4) permits obtaining personal information from a state DMV for use “in connection with” judicial and administrative proceedings, including “investigation in anticipation of litigation.” §2721(b)(4). The question presented is whether an attorney’s solicitation of clients for a lawsuit falls within the scope of (b)(4). Respondents are trial lawyers licensed to practice in South Carolina. They obtained names and addresses of thousands of individuals from the South Carolina DMV in order to send letters to find plaintiffs for a lawsuit they had filed against car dealers for violations of South Carolina law. Petitioners, South Carolina residents whose information was obtained and used without their consent, sued respondents for violating the DPPA. Respondents claimed the solicitation letters were permitted under subsection (b)(4). In light of the text, structure, and purpose of the DPPA, the Court now holds that an attorney’s solicitation of clients is not a permissible purpose covered by the (b)(4) litigation exception. I A The State of South Carolina, to protect purchasers of motor vehicles, enacted the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act (MDDA). In June 2006, respondent attorneys were approached by car purchasers who complained about administrative fees charged by car dealerships in certain South Carolina counties, allegedly in violation of the MDDA. The state statute prohibits motor vehicle dealers from engaging in “any action which is arbitrary, in bad faith, or unconscionable and which causes damage to any of the parties or to the public.” S. C. Code Ann. §56–15–40(1) (2006). The MDDA provides that “one or more may sue for the benefit of the whole” where an action is “one of common or general interest to many persons or when the parties are numerous and it is impracticable to bring them all before the court.” §56–15–110(2). On June 23, 2006, one of the respondent attorneys submitted a state Freedom of Information Act (FOIA) request to the South Carolina DMV to determine if charging illegal administrative fees was a common practice so that a lawsuit could be brought as a representative action under the MDDA. The attorney’s letter to the DMV requested information regarding “[p]rivate purchases of new or used automobiles in Spartanburg County during the week of May 1–7, 2006, including the name, address, and telephone number of the buyer, dealership where purchased, type of vehicle purchased, and date of purchase.” App. 57. The letter explained that the request was made “in anticipation of litigation . . . pursuant to the exception in 18 USC §2721(b)(4) of the Driver’s Privacy Protection Act.” Ibid. The South Carolina DMV provided the requested information. On August 24, 2006, respondents submitted a second FOIA request to the DMV, also asserting that it was made “in anticipation of litigation . . . pursuant to the exception in 18 USC §2721(b)(4),” for car purchasers in five additional counties during the same week. Id., at 67. On August 29, 2006, respondents filed suit in South Carolina state court on behalf of four of the consumers who originally contacted them. The case is referred to here, and by the parties, as the Herron suit. The complaint in the Herron suit named 51 dealers as defendants and invoked the MDDA’s “group action” provision to assert claims “for the benefit of all South Carolina car buyers wh[o] paid administrative fees,” id., at 128, to those dealers during the same time period. Some of the dealer defendants in the Herron suit filed motions to dismiss for lack of standing because none of the named plaintiffs purchased cars from them. On October 26, 2006, while the motions to dismiss were pending, respondents submitted a new FOIA request to the South Carolina DMV. That request, again citing subsection (b)(4) of the DPPA, sought to locate additional car buyers who could serve as plaintiffs against the dealers who had moved to dismiss. On October 31, 2006, respondents filed an amended complaint, which added four named plaintiffs and increased the number of defendant dealers from 51 to 324. As before, defendant dealerships that had not engaged in transactions with any of the now eight named plaintiffs filed motions to dismiss for lack of standing. On January 3, 2007, using the personal information they had obtained from the South Carolina DMV, respondents sent a mass mailing to find car buyers to serve as additional plaintiffs in the litigation against the dealers. Later in January, respondents made three more FOIA requests to the South Carolina DMV seeking personal information concerning people who had purchased cars from an additional 31 dealerships, again citing the (b)(4) exception. The South Carolina DMV granted all the requests. On January 23, respondents mailed a second round of letters to car buyers whose personal information had been disclosed by the DMV. Respondents sent additional rounds of letters on March 1, March 5, and May 8. Each of the five separate mailings was sent to different recipients. In total, respondents used the information obtained through their FOIA requests to send letters to over 34,000 car purchasers in South Carolina. This opinion refers to the communications sent by respondents simply as the “letters.” The letters, all essentially the same, had the heading “ADVERTISING MATERIAL.” The letters explained the lawsuit against the South Carolina dealers and asked recipients to contact the respondent-lawyers if interested in participating in the case. Attached to the letter was a reply card that asked a few questions about the recipient’s contact information and car purchase and ended with the sentence “I am interested in participating” followed by a signature line. The text of the letter and reply are set out in full in the Appendix, infra. In accordance with South Carolina Rule of Professional Conduct 7.3 (2012), which regulates the solicitation of prospective clients, respondents filed a copy of the letter and a list of recipients’ names and addresses with the South Carolina Office of Disciplinary Counsel. In June 2007, respondents sought to amend their complaint to add 247 plaintiffs. The court denied leave to amend and held the named plaintiffs had standing to sue only those dealerships from which they had purchased automobiles and any alleged co-conspirators. In September 2007, respondents filed two new lawsuits on behalf of the additional car buyers. Those subsequent cases were consolidated with the Herron suit. All claims against dealerships without a corresponding plaintiff-purchaser were dropped. B In the case now before the Court, petitioners are South Carolina residents whose personal information was obtained by respondents from the South Carolina DMV and used without their consent to send solicitation letters asking them to join the lawsuits against the car dealerships. Petitioner Edward Maracich received one of the letters in March 2007. While his personal information had been disclosed to respondents because he was one of many buyers from a particular dealership, Maracich also happened to be the dealership’s director of sales and marketing. Petitioners Martha Weeks and John Tanner received letters from respondents in May 2007. In response to the letter, Tanner called Richard Harpootlian, one of the respondent attorneys listed on the letter. According to Tanner, Harpootlian made an aggressive sales pitch to sign Tanner as a client for the lawsuit without asking about the circumstances of his purchase. In 2009, petitioners filed the instant putative class- action lawsuit in the United States District Court for the District of South Carolina. The complaint alleged that respondents had violated the DPPA by obtaining, disclosing, and using personal information from motor vehicle records for bulk solicitation without the express consent of petitioners and the other class members. Respondents moved to dismiss. The information, they contended, was subject to disclosure because it falls within two statutory exceptions in the DPPA: (b)(1), pertaining to governmental functions, and (b)(4), pertaining to litigation. On cross-motions for summary judgment, the District Court held as a matter of law that respondents’ letters were not solicitations and that the use of information fell within the (b)(4) litigation exception. App. to Pet. for Cert. 61a. The District Court also found that respondents’ use of personal information was permitted under the (b)(1) governmental-function exception. The Court of Appeals for the Fourth Circuit affirmed. Unlike the District Court, it found that the letters were “solicitation[s]” within the meaning of the DPPA; but it held further that when “solicitation is an accepted and expected element of, and is inextricably intertwined with, conduct satisfying the litigation exception under the DPPA, such solicitation is not actionable.” 675 F. 3d 281, 284 (2012). This Court granted certiorari to address whether the solicitation of clients is a permissible purpose for obtaining personal information from a state DMV under the DPPA’s (b)(4) exception. 567 U. S. ___ (2012). II To obtain a driver’s license or register a vehicle, state DMVs, as a general rule, require an individual to disclose detailed personal information, including name, home address, telephone number, Social Security number, and medical information. See Reno v. Condon, 528 U. S. 141, 143 (2000) . The enactment of the DPPA responded to at least two concerns over the personal information contained in state motor vehicle records. The first was a growing threat from stalkers and criminals who could acquire personal information from state DMVs. The second concern related to the States’ common practice of selling personal information to businesses engaged in direct marketing and solicitation. To address these concerns, the DPPA “establishes a regulatory scheme that restricts the States’ ability to disclose a driver’s personal information without the driver’s consent.” Id., at 144. The DPPA provides that, unless one of its exceptions applies, a state DMV “shall not knowingly disclose or otherwise make available” “personal information” and “highly restricted personal information.” §§2721(a)(1)–(2). “[P]ersonal information” is “information that identifies an individual, including [a] . . . driver identification number, name, address . . . , [or] telephone number, . . . but does not include information on vehicular accidents, driving violations, and driver’s status.” §2725(3). “[H]ighly restricted personal information” is defined as “an individual’s photograph or image, social security number, [and] medical or disability information.” §2725(4). The DPPA makes it unlawful “for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under section 2721(b) of this title.” §2722(a). A person “who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains.” §2724(a). The DPPA’s disclosure ban is subject to 14 exceptions set forth in §2721(b), for which personal information “may be disclosed.” The two exceptions most relevant for the purpose of this case are the litigation exception in subsection (b)(4) and the solicitation exception in (b)(12). The (b)(4) litigation exception is one of the four provisions permitting disclosure not only of personal information but also of highly restricted personal information. §2721(b)(4); §2725(4). It provides that information may be disclosed: “For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the exe- cution or enforcement of judgments and orders, or pur- suant to an order of a Federal, State, or local court.” The (b)(12) solicitation exception provides that certain personal information, not including highly restricted personal information, may be disclosed: “For bulk distribution for surveys, marketing, or solicitations if the State has obtained the express consent of the person to whom such personal information pertains.” The solicitation exception was originally enacted as an opt-out provision, allowing state DMVs to disclose personal information for purposes of solicitation only if the DMV gave individuals an opportunity to prohibit such disclosures. §2721(b)(12) (1994 ed.). In 1999, Congress changed to an opt-in regime, requiring a driver’s affirmative consent before solicitations could be sent. See Condon, supra, at 144–145. III Respondents’ liability depends on whether their use of personal information acquired from the South Carolina DMV to solicit clients constitutes a permissible purpose under the DPPA. The District Court held that respondents’ conduct was permissible both under the (b)(1) and (b)(4) exceptions. The Court of Appeals ruled that the conduct here was permissible under (b)(4); but, unlike the District Court, it did not address the alternative argument that the conduct was also permissible under (b)(1). As in the Court of Appeals, only the (b)(4) exception is discussed here. A Respondents claim they were entitled to obtain and use petitioners’ personal information based on two of the phrases in (b)(4). First, disclosure of personal information is permitted for use “in connection with any civil, criminal, administrative, or arbitral proceeding.” §2721(b)(4). Second, a use in connection with litigation includes “investigation in anticipation of litigation.” Ibid. Respondents contend that the solicitation of prospective clients, especially in the circumstances of this case, is both a use “in connection with” litigation and “investigation in anticipation of litigation.” 1 If considered in isolation, and without reference to the structure and purpose of the DPPA, (b)(4)’s exception allowing disclosure of personal information “for use in connection with any civil, criminal, administrative, or arbitral proceeding,” and for “investigation in anticipation of litigation,” is susceptible to a broad interpretation. That language, in literal terms, could be interpreted to its broadest reach to include the personal information that respondents obtained here. But if no limits are placed on the text of the exception, then all uses of personal information with a remote relation to litigation would be exempt under (b)(4). The phrase “in connection with” is essentially “indeterminat[e]” because connections, like relations, “ ‘stop nowhere.’ ” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655 (1995) . So the phrase “in connection with” provides little guidance without a limiting principle consistent with the structure of the statute and its other provisions. See id., at 656 (“We simply must go beyond the unhelpful text and the frustrating difficulty of defining [‘connection with’], and look instead to the objectives of the ERISA statute”); see also California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 335 (1997) (“But applying the ‘relate to’ provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else”). An interpretation of (b)(4) that is consistent with the statutory framework and design is also required because (b)(4) is an exception to both the DPPA’s general prohibition against disclosure of “personal information” and its ban on release of “highly restricted personal information.” §§2721(a)(1)–(2). An exception to a “general statement of policy” is “usually read . . . narrowly in order to preserve the primary operation of the provision.” Commissioner v. Clark, 489 U. S. 726, 739 (1989) . It is true that the DPPA’s 14 exceptions permit disclosure of personal information in a range of circumstances. Unless commanded by the text, however, these exceptions ought not operate to the farthest reach of their linguistic possibilities if that result would contravene the statutory design. Cf. Cowan v. Ernest Codelia, P. C., 149 F. Supp. 2d 67 (SDNY 2001) (rejecting an argument by defense counsel that obtaining from the DMV the home address of the assistant district attorney to send her a harassing letter was a permissible use “in connection with” the ongoing criminal proceeding under (b)(4)). If (b)(4) were read to permit disclosure of personal information whenever any connection between the protected information and a potential legal dispute could be shown, it would undermine in a substantial way the DPPA’s purpose of protecting an individual’s right to privacy in his or her motor vehicle records. The “in connection with” language in (b)(4) must have a limit. A logical and necessary conclusion is that an attorney’s solicitation of prospective clients falls outside of that limit. The proposition that solicitation is a distinct form of conduct, separate from the conduct in connection with litigation permitted under (b)(4) is demonstrated: by the words of the statute itself; by formal rules issued by bar organizations and governing boards; and by state statutes and regulations that govern and direct attorneys with reference to their duties in litigation, to their clients, and to the public. As this opinion explains in more detail, the statute itself, in (b)(12), treats bulk solicitation absent consent as a discrete act that the statute prohibits. And the limited examples of permissible litigation purposes provided in (b)(4) are distinct from the ordinary commercial purpose of solicitation. Canons of ethics used by bar associations treat solicitation as a discrete act, an act subject to specific regulation. And state statutes, including statutes of the State of South Carolina, treat solicitation as a discrete subject for regulation and governance of the profession. It would contradict the idea that solicitation is defined conduct apart from litigation to treat it as simply another aspect of the litigation duties set out in (b)(4). 2 An attorney’s solicitation of new clients is distinct from other aspects of the legal profession. “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.” Cohen v. Hurley, 366 U. S. 117, 124 (1961) , overruled on other grounds, Spevack v. Klein, 385 U. S. 511 (1967) . Unlike an attorney’s conduct performed on behalf of his client or the court, “solicitation by a lawyer of remunerative employment is a business transaction.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 457 (1978) ; see also Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 637 (1985) (attorney solicitation “ ‘propose[s] a commercial transaction’ ”). The “pecuniary motivation of the lawyer who solicits a particular representation” may even “create special problems of conflict of interest.” Ohralik, supra, at 461, n. 19. The distinction between solicitation and an attorney’s other duties is also recognized and regulated by state bars or their governing bodies, which treat solicitation as discrete professional conduct. See, e.g., Cal. Rule Prof. Conduct 1–400 (2013); N. Y. Rule Prof. Conduct 7.3 (2012–2013); Tex. Disciplinary Rules Prof. Conduct 7.02–7.03 (2013); Va. Rule Prof. Conduct 7.3 (Supp. 2012). That, indeed, was true here. Respondents were required by the South Carolina rules of ethics to include certain language in their solicitation letters and to file copies with the South Carolina Office of Disciplinary Counsel. See S. C. Rule Prof. Conduct 7.3. Given the difference between an attorney’s commercial solicitation of clients and his duties as an officer of the court, the proper reading of (b)(4) is that solicitation falls outside of the litigation exception. And when (b)(4) is interpreted not to give attorneys the privilege of using protected personal information to propose a commercial transaction, the statute is limited by terms and categories that have meaning in the regular course of professional practice. The exclusion of solicitation from the meaning of “in connection with” litigation draws further support from the examples of permissible litigation uses in (b)(4). The familiar canon of noscitur a sociis, the interpretive rule that “words and people are known by their companions,” Gutierrez v. Ada, 528 U. S. 250, 255 (2000) , provides instruction in this respect. Under this rule, the phrases “in connection with” and “investigation in anticipation of litigation,” which are “capable of many meanings,” Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961) , can be construed in light of their accompanying words in order to avoid giving the statutory exception “unintended breadth,” ibid.; see also United States v. Williams, 553 U. S. 285, 294 (2008) (the canon of noscitur a sociis “counsels that a word is given more precise content by the neighboring words with which it is associated”). The examples of uses “in connection with” litigation that Congress provided in (b)(4) include “the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.” §2721(b)(4). These uses involve an attorney’s conduct when acting in the capacity as an officer of the court, not as a commercial actor. The listed examples are steps that ensure the integrity and efficiency of an existing or imminent legal proceeding. This may include contacting persons who are already involved in the litigation or who are necessary parties or witnesses. These steps are different from the ordinary business purpose of solicitation. Here, as will be the case for most solicitations, the attorneys acted without court authorization or supervision and cast a wide net, sending letters to over 30,000 car purchasers to let them know the attorneys’ names and the attorneys’ interest in performing legal services for them. The examples in (b)(4) confirm, and are all consistent with, protecting the professional responsibilities that counsel, or the court, must discharge in the proper conduct of litigation. These are quite distinct from the separate subject, the separate professional conduct, of soliciting clients. The examples suggest that the litigation exception has a limited scope to permit the use of highly restricted personal information when it serves an integral purpose in a particular legal proceeding. In light of the types of conduct permitted by the subsection, the “in connection with” language should not be read to include commercial solicitations by an attorney. Similarly, “investigation in anticipation of litigation” is best understood to allow background research to determine whether there is a supportable theory for a complaint, a theory sufficient to avoid sanctions for filing a frivolous lawsuit, or to locate witnesses for deposition or trial testimony. An interpretation of “investigation” to include commercial solicitation of new clients would expand the language in a way inconsistent with the limited uses given as examples in the statutory text. It must be noted also that the phrase “in anticipation of litigation” is not a standalone phrase. It modifies, and necessarily narrows, the word “investigation.” To use the phrase “in anticipation of litigation” without that qualification is to extend the meaning of the statute far beyond its text. 3 An additional reason to hold that (b)(4) does not permit solicitation of clients is because the exception allows use of the most sensitive kind of information, including medical and disability history and Social Security numbers. To permit this highly personal information to be used in solicitation is so substantial an intrusion on privacy it must not be assumed, without language more clear and explicit, that Congress intended to exempt attorneys from DPPA liability in this regard. Subsection (b)(4) is one of only four exceptions in the statute that permit disclosure of “highly restricted personal information,” including a person’s image, Social Security number, and medical and disability information. See §2721(a)(2); §2725(4). The other three exceptions that permit access to highly restricted personal information include: use by the government, including law enforcement, see §2721(b)(1); use by an insurer in claim investigation and antifraud activities, see §2721(b)(6); and use by an employer to obtain or verify information as required by law, see §2721(b)(9). None of these exceptions are written to authorize private individuals to acquire the most restricted personal information in bulk merely to propose a commercial transaction for their own financial benefit. If (b)(4) permitted access to highly restricted personal information for an attorney’s own commercial ends with- out governmental authorization or without consent of the holder of the driver’s license, the result would be so sig- nificant a departure from these other exceptions that it counsels against adopting this interpretation of the statute. While the (b)(4) exception allows this sensitive information to be used for investigation in anticipation of litigation and in the litigation itself, there is no indication Congress wanted to provide attorneys with a special concession to obtain medical information and Social Security numbers for the purpose of soliciting new business. B Limiting the reach of (b)(4) to foreclose solicitation of clients also respects the statutory design of the DPPA. The use of protected personal information for the purpose of bulk solicitation is addressed explicitly by the text of (b)(12). Congress was aware that personal information from motor vehicle records could be used for solicitation, and it permitted it in circumstances that it defined, with the specific safeguard of consent by the person contacted. So the absence of the term “solicitation” in (b)(4) is telling. Subsection (b)(12) allows solicitation only of those persons who have given express consent to have their names and addresses disclosed for this purpose. If (b)(4) were to be interpreted to allow solicitation without consent, then the structure of the Act, and the purpose of (b)(12), would be compromised to a serious degree. It is necessary and required that an interpretation of a phrase of uncertain reach is not confined to a single sentence when the text of the whole statute gives instruction as to its meaning. United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 455 (1993) (“ ‘[I]n 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’ ” (quoting United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849))). The “in connection with” language of (b)(4) therefore must be construed within the context of the DPPA as a whole, including its other exceptions. This is not to say, as petitioners contend, that this is a straightforward application of the specific (qualified solicitation permission in (b)(12)) controlling the general (the undefined reach of “in connection with” and “investigation in anticipation of litigation” in (b)(4)). As between the two exceptions at issue here, it is not clear that one is always more specific than the other. For while (b)(12) is more specific with respect to solicitation, (b)(4) is more specific with respect to litigation. The DPPA’s 14 permissible use exceptions, moreover, are not in all contexts mutually exclusive. The better reading is that each exception addresses different conduct which may, on occasion, overlap. For example, certain uses of personal information by a court may be exempt either under (b)(1) or (b)(4). If conduct falls within the explicit or unambiguous scope of one exception, all other potentially applicable exceptions need not be satisfied. So the question is not which of the two exceptions controls but whether respondents’ conduct falls within the litigation exception at all. As to this question, petitioners are correct that the existence of the separate provision governing solicitation provides necessary context for defining the scope of (b)(4). As discussed above, the text of (b)(4) indicates that the exception is best read not to include solicitation as a use “in connection with” litigation. But even if there were any doubt on this point, the statutory design of the DPPA as a whole, including the (b)(12) exception governing solicitations, provides additional instruction for construing this provision. For this reason, it is relevant that “ ‘Congress has enacted a comprehensive scheme and has deliberately targeted specific problems with specific solutions.’ ” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U. S.___, ___ (2012) (slip op., at 5). Subsection (b)(12) implements an important objective of the DPPA—to restrict disclosure of personal information contained in motor vehicle records to businesses for the purpose of direct marketing and solicitation. The DPPA was enacted in part to respond to the States’ common practice of selling personal information to businesses that used it for marketing and solicitations. See Condon, 528 U. S., at 143 (“Congress found that many States . . . sell this personal information to individuals and businesses”); id., at 148 (“The motor vehicle information which the States have historically sold is used by insurers, manufacturers, direct marketers, and others engaged in interstate commerce to contact drivers with customized solicitations”). Congress chose to protect individual privacy by requiring a state DMV to obtain the license holder’s express consent before permitting the disclosure, acquisition, and use of personal information for bulk solicitation. The importance of the consent requirement is highlighted by Congress’ decision in 1999 to change the statutory mechanism that allowed individuals protected by the Act to opt out to one requiring them to opt in. See id., at 144–145; see also §§350(c)–(e), 113Stat. 1025. Direct marketing and solicitation present a particular concern not only because these activities are of the ordinary commercial sort but also because contacting an individual is an affront to privacy even beyond the fact that a large number of persons have access to the personal information. The DPPA’s (b)(5) exception illustrates this concern by permitting disclosure of personal information for use in research activities “so long as the personal information is not published, redisclosed, or used to contact individuals.” §2721(b)(5). Because (b)(12) represents Congress’ decision to target the problem of bulk solicitation with the requirement of express consent, other exceptions should not be construed to interfere with this statutory mechanism unless the text commands it. This is not to suggest that (b)(12) is an overriding rule that controls all other exceptions. It would not be necessary to consider (b)(12) if another statutory exception applied to the relevant conduct. The relevance of (b)(12), however, is that it can be used as additional evidence of the DPPA’s statutory design to interpret exceptions whose breadth and application are uncertain. Here, the phrase “in connection with” litigation in the (b)(4) exception, as a matter of normal usage and common understanding, does not encompass an attorney’s commercial use of DPPA-protected personal information to solicit new clients. This and the other reasons given above lead to the conclusion that it would be incorrect to interpret the text of this exception to include an attorney’s commercial solicitation as a use “in connection with” litigation. And, unlike (b)(12), the (b)(4) exception does not require obtaining an individual’s express consent before disclosing and using personal information contained in state motor vehicle records. If the “in connection with” language of (b)(4) were read broadly to include solicitation, an attorney could acquire personal information from the state DMV to send bulk solicitations to prospective clients without their express consent. This would create significant tension in the DPPA between the litigation and solicitation exceptions. That inconsistency and the concomitant undermining of the statutory design are avoided by interpreting (b)(4) so it does not authorize the use of personal information for the purpose of soliciting clients. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradictory. . . . [T]here can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously”). C If the phrase “in connection with” in (b)(4) included solicitation by lawyers, then a similar reach for that phrase could apply to other exceptions, resulting in further frustration of the Act’s design. Subsection (b)(6) allows an insurer and certain other parties to obtain DMV information for use “in connection with . . . underwriting.” §2721(b)(6). If that phrase extended to solicitation, then personal information protected by the DPPA could be used to solicit new customers for underwriting without their consent. It is most doubtful that Congress intended to exempt insurers from the consent requirement for bulk solicitations. The DPPA, in subsection (b)(10), permits disclosure and use of personal information “in connection with” the operation of private toll roads. If the phrase were interpreted to extend to all solicitations without consent, then the owner of a private toll road could send targeted mass advertisings or direct marketing letters by using the protected personal information obtained from state motor vehicle records. This, too, would take away much of the force and effect of the (b)(12) restriction on bulk solicitation without the express consent of the person contacted. When Congress did intend the phrase “in connection with” to permit conduct otherwise subject to the express consent requirement in (b)(12), it did so in explicit terms. An illustration can be found in the interplay between (b)(2) and (b)(12) of the DPPA. As has been noted, (b)(12) prohibits disclosure of protected personal information for the purpose of sending bulk distribution of surveys without the express consent of the recipients. Subsection (b)(2), however, permits disclosure of personal information “[f]or use in connection with matters of . . . motor vehicle market research activities, including survey research.” §2721(b)(2). So what the DPPA prohibits in (b)(12) it explicitly allows in (b)(2), but it does so by repeating the same word, “survey,” in the text of both provisions. If the “in connection with” language alone were sufficient to include “surveys” within (b)(2), the phrase “survey research” would be mere surplusage. Instead, the explicit reference to “survey” in (b)(2) was necessary to make clear that Congress had created an exception to the (b)(12)’s consent requirement for one particular type of survey. When it comes to the prohibition on “solicitations” in (b)(12), however, that word is not repeated in the text of (b)(4). This leads to the inference that Congress did not intend (b)(4) to include “solicitations” and thus to override the express consent requirement of (b)(12). IV A Respondents concede that (b)(4) does not permit attorneys to use personal information acquired from a state DMV to find new business in the absence of any connection to a particular transaction, occurrence, or defect. They contend, however, that a line can be drawn between mere trolling for clients (which is not permitted) and solicitation tied to a specific legal dispute (which, respondents argue, is permitted). While some solicitations may have a close relationship with existing proceedings, there is no principled way to classify some solicitations as acceptable and others as unacceptable for the purpose of (b)(4). Even if solicitation were permitted only after a lawyer has a client or filed a lawsuit, attorneys would be able to circumvent this limitation with ease by the simple device of filing a placeholder lawsuit. All an attorney would need is one friend or family member as his client before being able to gain access to DPPA-protected personal information to solicit persons to fill in as plaintiffs. Solicitation of new plaintiffs to keep defendants in a lawsuit that would otherwise be dismissed for lack of standing is no different in substance from solicitation to initiate a lawsuit. Here, at any rate, the state court found that plaintiffs had standing to sue the dealerships from which they had purchased automobiles and any alleged co-conspirators. See 675 F. 3d, at 287, n. 3. This can undermine the argument that solicitation of additional plaintiffs was somehow necessary for the lawsuit to continue. Drawing the line between solicitations related to an existing proceeding and those that are not is not a tenable distinction. The proper solution is to draw the line at solicitation itself. The structure of the DPPA supports this distinction. If solicitation were deemed a permissible purpose under (b)(4), even when limited to a particular lawsuit, tension would remain between the (b)(12) solicitation exception, which requires express consent, and the (b)(4) litigation exception, which does not. The two statutory provisions are consistent if solicitation is excluded from the activity permitted in (b)(4). Of course solicitation can aid an attorney in bringing a lawsuit or in increasing its size. The question, however, is whether or not lawyers can use personal information protected under the DPPA for this purpose. Petitioners and other state residents have no real choice but to disclose their personal information to the state DMV, including highly restricted personal information. The use of that information by private actors to send direct commercial solicitations without the license holder’s consent is a substantial intrusion on the individual privacy the Act protects. For the reasons already discussed, a proper interpretation of a use “in connection with” litigation under (b)(4) in light of the DPPA’s text and structure does not include solicitation. The fact that an attorney complies with state bar rules governing solicitations also does not resolve whether he is entitled to access the state DMV database for that purpose under the DPPA. There is no provision of South Carolina law that either permits or requires attorneys to use DPPA-protected information to solicit potential clients. Even if such a provision existed, under the Supremacy Clause, it would not protect respondents from DPPA liability unless their conduct fell within one of the Act’s exceptions. A person is liable under the DPPA if he “knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted” by one of the statutory exceptions. §2724(a). In determining whether obtaining, using, or disclosing the personal information is for the prohibited purpose of solicitation, the proper inquiry is whether the defendant had the predominant purpose to solicit. Because, in some cases, a communication sent with DPPA-protected information may serve more than one objective, a court must discern whether solicitation is its predominant purpose. That purpose might be evident from the communication itself. In other instances the defendant’s whole course of conduct will be relevant in determining whether solicitation was the predominant purpose of the act alleged to be wrongful. Close cases may arise. Where a communication seeks to provide class notice or locate a witness, for example, the fact that the attorney provides contact information for a reply likely would not make the communication an improper solicitation. And the fact that a letter follows the state bar rules governing attorney solicitations, although relevant, will not be dispositive. For example, if the predominant purpose of a letter was not to solicit a new client, but rather to ask a witness investigatory questions or to secure her testimony at trial, adherence to state bar solicitation rules would not subject the sender to DPPA liability. Subsequent conduct, in some cases, may show that solicitation in fact was the predominant purpose of an earlier act; and, of course, even if an initial request was proper, a later use may be a violation. Where a reason- able observer could discern that the predominant purpose of obtaining, using, or disclosing protected personal information was to initiate or propose a business trans- action with a prospective client, (b)(4) does not exempt the solicitation. Respondents contend that even if solicitation of clients is impermissible as a general rule, solicitation to aggregate a class action suit is permitted under (b)(4). Where the predominant purpose is solicitation, however, (b)(4) does not entitle attorneys to obtain and use DPPA-protected information. To the extent the solicitation of plaintiffs can help attorneys bring a larger class action, there are alternatives that do not sacrifice an individual’s privacy in his or her motor vehicle records. An attorney, pursuant to a court order, could send class notice. Class notice may prompt a class member to join the lawsuit, but it also serves the important purpose of protecting the rights of absent class members and ensures that any decision will be binding on the class. Class notice sent on the instruction of the court also does not raise the same concerns that attorneys are acting only in their own commercial interest. But respondents here did not obtain or use the protected personal information to send class no- tices or comply with a court order. The letters made no mention of ethical obligations to outstanding group members or the consequences of not joining the suit. As the Court of Appeals noted, respondents “failed to indicate to recipients that they may already be de facto clients of the Lawyers, that is, persons whose interests were already protected by the senders.” 675 F. 3d, at 293. Had respondents received a court order, they might have been able to rely on the explicit language in (b)(4) permitting uses of information “pursuant to an order of a Federal, State, or local court.” §2721(b)(4). But because respondents had no court order authorizing their conduct, this opinion need not address whether it would be proper for a court to order attorneys to obtain DPPA-protected personal information to solicit plaintiffs. Attorneys are free to solicit plaintiffs through traditional and permitted advertising without obtaining personal information from a state DMV. Here, the attorneys could also have complied with (b)(12) and limited their solicitation to those individuals who had expressly consented, or respondents could have requested consent through the DPPA’s waiver procedure. See §2721(d). In light of these and other alternatives, attorneys are not without the necessary means to aggregate a class of plaintiffs. What they may not do, however, is to acquire highly restricted personal information from state DMV records to send bulk solicitations without express consent from the targeted recipients. This is not to suggest that attorneys may not obtain DPPA-protected personal information for a proper investigatory purpose. Where respondents obtained petitioners’ personal information to discern the extent of the alleged misconduct or identify particular defendants, those FOIA requests appear permissible under (b)(4) as “investigation in anticipation of litigation.” Solicitation of new business, however, is not “investigation” within the meaning of (b)(4). And acquiring petitioners’ personal information for a legitimate investigatory purpose does not entitle respondents to then use that same information to send direct solicitations. Each distinct disclosure or use of personal information acquired from a state DMV must be permitted by the DPPA. See §2724(a) (“A person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains”); see also §2721(c). If the statute were to operate otherwise, obtaining personal information for one permissible use would entitle attorneys to use that same information at a later date for any other purpose. For example, a lawyer could obtain personal information to locate witnesses for a lawsuit and then use those same names and addresses later to send direct marketing letters about a book he wrote. B The Court of Appeals held that the letters here were solicitations, finding that “a reasonable recipient would almost certainly have understood the message to be a solicitation from a lawyer.” Id., at 293. The court noted as relevant that respondents themselves took steps to follow South Carolina bar rules governing attorney solicitations and rejected respondents’ description of the letters as investigatory in nature, given that “[n]o mention was made of an investigation into certain practices other than the implicit suggestion of investigation during a ‘free consultation.’ ” Ibid. The included reply card did not alter the Court of Appeals’ finding that the communications were solicitations rather than investigation. Only those interested in joining the lawsuit were directed to fill out the card and the only place to sign the card was under the phrase “I am interested in participating.” See Appendix, infra, at 31. The card asked for data regarding vehicle purchases relevant to initiate the representation of the prospective clients. But although the Court of Appeals found that the letters were solicitations, it held the communications nonetheless exempt under (b)(4) because they were “inextricably intertwined” with permissible litigation purposes. 675 F. 3d, at 284. As explained above, however, if the use of DPPA-protected personal information has the predominant purpose of solicitation, that use is not protected by (b)(4). A remand is necessary for application of the proper standard because the Court of Appeals could conclude, in light of the content of the communications, taken with other evidence in the record, that respondents’ letters had the predominant purpose to solicit clients. On remand, the Court of Appeals should determine whether the record shows that the communications sought, or were used, to develop the factual basis of the Herron complaint, locate witnesses, identify additional defendants, or perform any other investigative function related to the litigation. Even if so, the question is whether solicitation was the predominant purpose for sending the letters. V This case does not involve the statutory section imposing criminal liability, which is written in different terms than the civil remedies provision. See §2723(a) (“A person who knowingly violates this chapter shall be fined under this title”). As to civil liability, the amount of damages sought in the complaint is based on the number of persons, over 30,000 individuals, whose personal and highly sensitive information was disclosed and who were solicited. Whether the civil damages provision in §2724, after a careful and proper interpretation, would permit an award in this amount, and if so whether principles of due process and other doctrines that protect against excessive awards would come into play, is not an issue argued or presented in this case. In this framework, there is no work for the rule of lenity to do. This Court has held that “the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute such that the Court must simply guess as to what Congress intended.” Barber v. Thomas, 560 U. S. ___, ___ (2010) (slip op., at 13) (citation and internal quotation marks omitted). But here, as discussed, the surrounding text and structure of the DPPA resolve any ambiguity in phrases “in connection with” and “investigation in anticipation of litigation” in (b)(4). Only where “the language or history of [the statute] is uncertain” after looking to “the particular statutory language, . . . the design of the statute as a whole and to its object and policy,” does the rule of lenity serve to give further guidance. Crandon v. United States, 494 U. S. 152, 158 (1990) . “The rule [of lenity] comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” See Callanan v. United States, 364 U. S. 587, 596 (1961) . There is no room for the rule of lenity where the text and structure of the DPPA require an interpretation of (b)(4) that does not reach out to include an attorney’s solicitation of clients. VI Solicitation of prospective clients is not a permissible use “in connection with” litigation or “investigation in anticipation of litigation” under (b)(4) of the DPPA. As a result, the Court of Appeals erred in granting respondents summary judgment without first determining whether the communications had the predominant purpose of solicitation. And since the solicited persons did not give express consent to the disclosure or use of their personal information for this purpose, the (b)(12) exception does not apply. On remand, the Court of Appeals, or the District Court, must determine whether respondents’ letters, viewed objectively, had the predominant purpose of solicitation. The Court of Appeals’ finding that these letters were solicitations can be the basis for the further conclusion that solicitation was the predominant purpose of their transmission. Because the Court of Appeals applied the wrong standard in finding these solicitations exempt under (b)(4), however, the Court remands for application of the proper standard. Further proceedings also may be required to determine whether the initial act of obtaining petitioners’ personal information was permitted under the DPPA. The Court of Appeals and the District Court seem to have agreed that the first two FOIA requests were made in order for respondents to decide whether to file the MDDA lawsuit as a group action and to identify the highest volume dealers. App. 39a. If, in light of this opinion, the courts on remand adhere to the determination that the first two FOIA requests were exempt under (b)(4), the later uses and dis- closures of that information, nevertheless, may be independ- ent violations of the DPPA. If the use of petitioners’ personal information to send the letters in this case is deemed to be a violation of the Act, then the courts can decide if it remains relevant and necessary, for liability and damages purposes, to determine whether the last four FOIA requests were also in violation of the DPPA. Assuming violations of the DPPA are established, questions regarding the calculation and assessment of damages then can be considered. Neither this Court nor the Court of Appeals has considered whether respondents’ conduct was permissible under the (b)(1) governmental-function exception. Whether solicitation would be permitted conduct under (b)(1) is not resolved by this case. This case turns on the interpretation of “in connection with” litigation and “investigation in anticipation of litigation,” phrases not included in (b)(1). Where personal information is used for the predominant purpose of solicitation, the fact that the solicitation itself may serve a governmental function is not relevant to the interpretation of (b)(4). It may, however, be relevant to the (b)(1) inquiry. Respondents’ argument that they were authorized under state law to act as private attorneys general on behalf of the State is properly addressed under (b)(1). Arguments related to (b)(1) and other defenses, to the extent they have been preserved and are still proper to consider, must be for further proceedings on remand. This Court now holds that sending communications for the predominant purpose of solicitation is not a use of personal information exempt from DPPA liability under (b)(4). 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.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MARACICH et al. v. SPEARS et al. certiorari to the united states court of appeals for the fourth circuit No. 12–25. Argued January 9, 2013—Decided June 17, 2013 Respondent attorneys submitted several state Freedom of Information Act (FOIA) requests to the South Carolina DMV, seeking names and addresses of thousands of individuals in order to solicit clients for a lawsuit they had pending against several South Carolina car dealerships for violation of a state law that protects car purchasers from dealership actions that are “arbitrary, in bad faith, or unconscionable.” Using the personal information provided by the DMV, respondents sent over 34,000 car purchasers letters, which were headed “ADVERTISING MATERIAL,” explained the lawsuit, and asked recipients to return an enclosed reply card if they wanted to participate in the case. Petitioners, South Carolina residents, sued respondents for violating the federal Driver’s Privacy Protection Act of 1994 (DPPA) by obtaining, disclosing, and using petitioners’ personal information from motor vehicle records for bulk solicitation without their express consent. Respondents moved to dismiss, claiming that the information was properly released under a DPPA exception permitting disclosure of personal information “for use in connection with any civil, criminal, administrative, or arbitral proceeding,” including “investigation in anticipation of litigation.” 18 U. S. C. §2721(b)(4). The District Court held that respondents’ letters were not solicitations and that the use of information fell within (b)(4)’s litigation exception. The Fourth Circuit affirmed, concluding that the letters were solicitation, but that the solicitation was intertwined with conduct that satisfied the (b)(4) exception. Held: An attorney’s solicitation of clients is not a permissible purpose covered by the (b)(4) litigation exception. . (a) State DMVs generally require someone seeking a driver’s license or registering a vehicle to disclose detailed personal information such as name, address, telephone number, Social Security number, and medical information. The DPPA—responding to a threat from stalkers and criminals who could acquire state DMV information, and concerns over the States’ common practice of selling such information to direct marketing and solicitation businesses—bans disclosure, absent a driver’s consent, of “personal information,” e.g., names, addresses, or telephone numbers, as well as “highly restricted personal information,” e.g., photographs, social security numbers, and medical or disability information, §2725(4), unless 1 of 14 exemptions applies. Subsection (b)(4) permits disclosure of both personal information and highly restricted personal information, while subsection (b)(12) permits disclosure only of personal information. . (b) Respondents’ solicitation of prospective clients is neither a use “in connection with” litigation nor “investigation in anticipation of litigation” under (b)(4). . (1) The phrase “in connection with” provides little guidance without a limiting principle consistent with the DPPA’s purpose and its other provisions. See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656. Such a consistent interpretation is also required because (b)(4) is an exception to both the DPPA’s general ban on disclosure of “personal information” and the ban on release of “highly restricted personal information.” An exception to a general policy statement is “usually read . . . narrowly in order to preserve the [provision’s] primary operation.” Commissioner v. Clark, 489 U.S. 726, 739. Reading (b)(4) to permit disclosure of personal information when there is any connection between protected information and a potential legal dispute would substantially undermine the DPPA’s purpose of protecting a right to privacy in motor vehicle records. Subsection (b)(4)’s “in connection with” language must have a limit, and a logical and necessary conclusion is that an attorney’s solicitation of prospective clients falls outside of that limit. . (2) An attorney’s solicitation of new clients is distinct from an attorney’s conduct on behalf of his client or the court. Solicitation “by a lawyer of remunerative employment is a business transaction,” Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 457, and state bars treat solicitation as discrete professional conduct. Excluding solicitation from the meaning of “in connection with” litigation draws support from (b)(4)’s examples of permissible litigation uses—“service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders”—which all involve an attorney’s conduct as an officer of the court, not a commercial actor. Similarly, “investigation in anticipation of litigation” is best understood to allow background research to determine if there is a supportable theory for a complaint or a theory sufficient to avoid sanctions for filing a frivolous lawsuit, or to help locate witnesses for deposition or trial. . (3) This reading is also supported by the fact that (b)(4) allows use of the most sensitive personal information. Permitting its use in solicitation is so substantial an intrusion on privacy it must not be assumed, without clear and explicit language, absent here, that Congress intended to exempt attorneys from DPPA liability in this regard. . (c) Limiting (b)(4)’s reach also respects the statutory purpose and design evident in subsection (b)(12), which allows solicitation only of persons who have given express consent to have their names and addresses disclosed for this purpose. Subsection (b)(12) implements an important objective of the DPPA—to restrict disclosure of personal information in motor vehicle records to businesses for the purpose of direct marketing and solicitation. Other exceptions should not be construed to interfere with this objective unless the text commands it. Reading (b)(4)’s “in connection with” phrase to include solicitation would permit an attorney to use personal information from the state DMV to send bulk solicitations to prospective clients without their express consent, thus creating significant tension between the DPPA’s litigation and solicitation exceptions. . (d) Such a reading of (b)(4) could also affect the interpretation of the (b)(6) exception, which allows an insurer and certain others to obtain DMV information for use “in connection with . . . underwriting,” and the (b)(10) exception, which permits disclosure and use of personal information “in connection with” the operation of private toll roads. . (e) Respondents contend that a line can be drawn between mere trolling for clients and their solicitation, which was tied to a specific legal dispute, but that is not a tenable distinction. The DPPA supports drawing the line at solicitation. Solicitation can aid an attorney in bringing a lawsuit or increasing its size, but the question is whether or not lawyers can use personal information protected under the DPPA for this purpose. The mere fact that respondents complied with state bar rules governing solicitations also does not resolve whether they were entitled to access personal information from the state DMV database for that purpose. In determining whether obtaining, using, or disclosing personal information is for the prohibited purpose of solicitation, the proper inquiry is whether the defendant’s purpose was to solicit, which might be evident from the communication itself or from the defendant’s course of conduct. When that is the predominant purpose, (b)(4) does not entitle attorneys to DPPA-protected information even when solicitation is to aggregate a class action. Attorneys also have other alternatives to aggregate a class, including, e.g. soliciting plaintiffs through traditional and permitted advertising. And they may obtain DPPA-protected information for a proper investigative use. Although the Fourth Circuit held that the letters here were solicitations, it found the communications nonetheless exempt under (b)(4) because they were “inextricably intertwined” with permissible litigation purposes. If however, the use of DPPA-protected personal information has the predominant purpose of solicitation, it would not be protected by (b)(4). A remand is necessary for the court to apply the proper standard to determine the predominant purpose of respondents’ letters. . (f) There is no work for the rule of lenity to do here, because the DPPA’s text and structure resolve any ambiguity in (b)(4)’s phrases “in connection with” and “investigation in anticipation of litigation.” . (g) On remand, the courts below must determine whether respondents’ letters, viewed objectively, had the predominant purpose of solicitation, and may address whether respondents’ conduct was permissible under (b)(1)’s governmental-function exception and any other defenses that have been properly preserved. . 675 F.3d 281, vacated and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, and Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Scalia, Sotomayor, and Kagan, JJ., joined.

Section 2721(b)(4) of the Driver's Privacy Protection Act of 1994 ( DPPA) provides that a person may sue for the benefit of the whole in any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court, including the service of process, investigation, or enforcement of judgments and orders, or pur- suant to an order of a Federal or State District Court. Respondents, South Carolina residents whose personal information was obtained by respondents from the South Carolina DMV and used without their consent to send solicitation letters asking them to join the lawsuits against car dealerships, brought a class action in Federal District Court, alleging that respondents had violated the DPPA by obtaining, disclosing, and using personal information from motor vehicle records for bulk solicitation without the express consent of petitioners and the other class members. The District Court held as a matter of law that respondents' letters were not solicitations and that the use of the information fell within the (b)(1) litigation exception. The Court of Appeals affirmed. Held: 1. An attorney's solicitation of clients for a lawsuit is not a permissible purpose covered by the litigation exception in §2721. The text, structure, and purpose of that exception show that the solicitation of the letters here involved was conducted in anticipation of litigation, not in connection with a civil or criminal action. . (a) The use of DPPA-protected personal information, including medical and disability history and Social Security numbers, falls outside of the exception. The words of the statute itself, by formal rules issued by bar organizations and governing boards, and by state statutes and regulations that govern and direct attorneys with reference to their duties in litigation, to their clients, and to the public, must be construed in light of their accompanying words in order to avoid giving the statutory exception its unintended breadth. Here, respondents did not obtain or use the protected personal information to send the letters in question, but rather to solicit prospective clients. Although the mailings were solicitations, the communications were nonetheless exempt under (b)4) because they were entangled with permissible litigation purposes. A remand is necessary to determine whether the record shows that the communications sought, or were used, to develop the factual basis of the complaint, locate witnesses, identify additional defendants, or perform any other investigative function related to the litigation. P.. (b) On remand, the courts on remand must determine whether respondents had the predominant purpose of solicitation. If they do so, they should determine whether or not the later uses and dis-closures of that information, nevertheless, may be independ- ent violations of the Act. This and other reasons given above lead to the conclusion that it would be incorrect to interpret the text of this exception to include an attorney's commercial solicitation as a use "in connection with" the ongoing criminal proceeding under the statute. It would undermine the Act's purpose of protecting an individual's right to privacy in his or her motor vehicles records by undermining in a substantial way the statute and its purpose of exempting attorneys from DPPA liability for solicitation without consent. Furthermore, the question is not whether solicitation would be permitted conduct under the governmental-function exception, but whether it is permissible under the standard set forth in the statutory text and structure governing solicitations. In light of these and other alternatives, attorneys are not without the necessary means to aggregate a class of plaintiffs. What they may not do is to acquire highly restricted personal information from state DMV records to send bulk solicitations without express consent from the targeted recipients. To permit such highly restricted information to be used in solicitation is so substantial an intrusion on privacy it must not be assumed, without language more clear and explicit, that Congress intended to exempt attorneys from such liability in this regard. Moreover, the statutory design of the entire DPPA as a whole, including that exception, including such exceptions, provides additional instruction for construing this provision. Petitioners are correct that the existence of the separate provision governing solicitation provides necessary context for defining the scope of that provision.. 2. Solicitation of prospective clients, not solicitation, is not permissible use under the rule set forth above... 675 F. 3d 281, vacated and remanded. FOR THE NINTH CIRCUIT 575 F.3d 284, judgment vacated and causes remanded for further proceedings. For the first time in this case, a remand should be taken to determine, under the proper standard, whether the first act of obtaining petitioners' personal information (which was not included in the original FOIA requests) was permitted under the law. While the first two FOIA requests were made in order for respondents to decide whether to file the MDDA lawsuit as a group action and to identify the highest volume dealers in the county, they did not receive or use their personal information in the mail. Respondents did not use their protected information to solicit new plaintiffs,

2012_11-1175

https://www.oyez.org/cases/2012/11-1175

. Federal Rule of Civil Procedure 54(d)(1) gives district courts discretion to award costs to prevailing defendants “[u]nless a federal statute . . . provides otherwise.” The Fair Debt Collection Practices Act (FDCPA), 91Stat. 881, 15 U. S. C. §1692k(a)(3), provides that “[o]n a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” This case presents the question whether §1692k(a)(3) “provides otherwise” than Rule 54(d)(1). We conclude that §1692k(a)(3) does not “provid[e] otherwise,” and thus a district court may award costs to prevailing defendants in FDCPA cases without finding that the plaintiff brought the case in bad faith and for the purpose of harassment. I Petitioner Olivea Marx defaulted on a student loan guaranteed by EdFund, a division of the California Student Aid Commission. In September 2008, EdFund hired respondent General Revenue Corporation (GRC) to collect the debt. One month later, Marx filed an FDCPA enforcement action against GRC.[1] Marx alleged that GRC had violated the FDCPA by harassing her with phone calls several times a day and falsely threatening to garnish up to 50% of her wages and to take the money she owed directly from her bank account. Shortly after the complaint was filed, GRC made an offer of judgment under Federal Rule of Civil Procedure 68 to pay Marx $1,500, plus reasonable attorney’s fees and costs, to settle any claims she had against it. Marx did not respond to the offer. She subsequently amended her complaint to add a claim that GRC unlawfully sent a fax to her workplace that requested information about her employment status. Following a 1-day bench trial, the District Court found that Marx had failed to prove any violation of the FDCPA. As the prevailing party, GRC submitted a bill of costs seeking $7,779.16 in witness fees, witness travel expenses, and deposition transcript fees. The court disallowed several items of costs and, pursuant to Federal Rule of Civil Procedure 54(d)(1), ordered Marx to pay GRC $4,543.03. Marx filed a motion to vacate the award of costs, arguing that the court lacked authority to award costs under Rules 54(d)(1) and 68(d) because 15 U. S. C. §1692k(a)(3) sets forth the exclusive basis for awarding costs in FDCPA cases.[2] Section 1692k(a)(3) provides, in relevant part: “On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” Marx argued that because the court had not found that she brought the case in bad faith and for the purpose of harassment, GRC was not entitled to costs. The Dis- trict Court rejected Marx’s argument, concluding that §1692k(a)(3) does not displace a court’s discretion to award costs under Rule 54(d)(1) and that costs should also be awarded under Rule 68(d). The Tenth Circuit affirmed but agreed only with part of the District Court’s reasoning. In particular, the court disagreed that costs were allowed under Rule 68(d). 668 F.3d 1174, 1182 (2011). It explained that “Rule 68 applies only where the district court enters judgment in favor of a plaintiff” for less than the amount of the settlement offer and not where the plaintiff loses outright. Ibid. (citing Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981)). Because the District Court had not entered judgment in favor of Marx, the court concluded that costs were not allowed under Rule 68(d). 668 F. 3d, at 1182. Nevertheless, the court found that costs were allowed under Rule 54(d)(1), which grants district courts discretion to award costs to prevailing parties unless a federal statute or the Federal Rules of Civil Procedure provide otherwise. Id., at 1178, 1182. After describing the “venerable” presumption that prevailing parties are entitled to costs, id., at 1179, the court concluded that nothing in the text, history, or purpose of §1692k(a)(3) indicated that it was meant to displace Rule 54(d)(1), id., at 1178–1182. Judge Lucero dissented, arguing that “[t]he only sensible reading of [§1692k(a)(3)] is that the district court may only award costs to a defendant” upon finding that the action was brought in bad faith and for the purpose of harassment and that to read it otherwise rendered the phrase “and costs” superfluous. Id., at 1187 (emphasis in original). We granted certiorari, 566 U. S. ___ (2012), to resolve a conflict among the Circuits regarding whether a prevailing defendant in an FDCPA case may be awarded costs where the lawsuit was not brought in bad faith and for the purpose of harassment. Compare 668 F. 3d, at 1182 (case below), with Rouse v. Law Offices of Rory Clark, 603 F.3d 699, 701 (CA9 2010). We now affirm the judgment of the Tenth Circuit. II As in all statutory construction cases, we “ ‘assum[e] that the ordinary meaning of [the statutory] language accurately expresses the legislative purpose.’ ” Hardt v. Re- liance Standard Life Ins. Co., 560 U. S. ___, ___ (2010) (slip op., at 8) (quoting Gross v. FBL Financial Services, Inc., 557 U.S. 167, 175 (2009) (alteration in original)). In this case, we must construe both Rule 54(d)(1) and §1692k(a)(3) and assess the relationship between them. A Rule 54(d)(1) is straightforward. It provides, in relevant part: “Unless a federal statute, these rules, or a court or- der provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” As the Tenth Circuit correctly recognized, Rule 54(d)(1) codifies a venerable presumption that prevailing parties are entitled to costs.[3] Notwithstanding this presumption, the word “should” makes clear that the decision whether to award costs ultimately lies within the sound discretion of the district court. See Taniguchi v. Kan Pacific Saipan, Ltd., 566 U. S. ___, ___ (2012) (slip op., at 4) (“Federal Rule of Civil Procedure 54(d) gives courts the discretion to award costs to prevailing parties”). Rule 54(d)(1) also makes clear, however, that this discretion can be displaced by a federal statute or a Federal Rule of Civil Procedure that “provides otherwise.” A statute “provides otherwise” than Rule 54(d)(1) if it is “contrary” to the Rule. See 10 J. Moore, Moore’s Federal Practice §54.101[1][c], p. 54–159 (3d ed. 2012) (hereinafter 10 Moore’s). Because the Rule grants district courts discretion to award costs, a statute is contrary to the Rule if it limits that discretion. A statute may limit a court’s dis- cretion in several ways, and it need not expressly state that it is displacing Rule 54(d)(1) to do so. For instance, a statute providing that “plaintiffs shall not be liable for costs” is contrary to Rule 54(d)(1) because it precludes a court from awarding costs to prevailing defendants. See, e.g., 7 U. S. C. §18(d)(1) (“The petitioner shall not be liable for costs in the district court”). Similarly, a statute providing that plaintiffs may recover costs only under certain conditions is contrary to Rule 54(d) because it precludes a court from awarding costs to prevailing plaintiffs when those conditions have not been satisfied. See, e.g., 28 U. S. C. §1928 (“[N]o costs shall be included in such judgment, unless the proper disclaimer has been filed in the United States Patent and Trademark Office”). Importantly, not all statutes that provide for costs are contrary to Rule 54(d)(1). A statute providing that “the court may award costs to the prevailing party,” for example, is not contrary to the Rule because it does not limit a court’s discretion. See 10 Moore’s §54.101[1][c], at 54–159 (“A number of statutes state simply that the court may award costs in its discretion. Such a provision is not con- trary to Rule 54(d)(1) and does not displace the court’s discretion under the Rule”). Marx and the United States as amicus curiae suggest that any statute that specifically provides for costs displaces Rule 54(d)(1), regardless of whether it is contrary to the Rule. Brief for Petitioner 17; Brief for United States as Amicus Curiae 11–12 (hereinafter Brief for United States). The United States relies on the original 1937 version of Rule 54(d)(1), which provided, “ ‘Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.’ ” Id., at 12 (quoting Rule). Though the Rules Committee updated the language of Rule 54(d)(1) in 2007, the change was “stylistic only.” Advisory Committee’s Notes, 28 U. S. C. App., p. 734 (2006 ed., Supp. V). Accordingly, the United States asserts that any “express provision” for costs should displace Rule 54(d)(1). We are not persuaded, however, that the original version of Rule 54(d) should be interpreted as Marx and the United States suggest. The original language was meant to ensure that Rule 54(d) did not displace existing costs provisions that were contrary to the Rule. Under the prior language, statutes that simply permitted a court to award costs did not displace the Rule. See 6 J. Moore, Moore’s Federal Practice §54.71[1], p. 54–304 (2d ed. 1996) (“[W]hen permissive language is used [in a statute regarding costs] the district court may, pursuant to Rule 54(d), exercise a sound discretion relative to the allowance of costs”). Rather, statutes had to set forth a standard for awarding costs that was different from Rule 54(d)(1) in order to displace the Rule. See Friedman v. Ganassi, 853 F.2d 207, 210 (CA3 1988) (holding that 15 U. S. C. §77k(e) is not an “express provision” under Rule 54(d) because it does not provide an “alternative standard” for awarding taxable costs). The original version of Rule 54(d) is consistent with our conclusion that a statute must be contrary to Rule 54(d)(1) in order to displace it.[4] B We now turn to whether §1692k(a)(3) is contrary to Rule 54(d)(1). The language of §1692k(a)(3) and the context surrounding it persuade us that it is not. 1 The second sentence of §1692k(a)(3) provides: “On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.”[5] GRC contends that the statute does not address whether costs may be awarded in this case—where the plaintiff brought the case in good faith—and thus it does not set forth a standard for awarding costs that is contrary to Rule 54(d)(1). In its view, Congress intended §1692k(a)(3) to deter plaintiffs from bringing nuisance lawsuits. It, therefore, expressly provided that when plaintiffs bring an action in bad faith and for the purpose of harassment, the court may award attorney’s fees and costs to the defendant. The statute does address this type of case—i.e., cases in which the plaintiff brings the action in bad faith and for the purpose of harassment. But it is silent where bad faith and purpose of harassment are absent, and silence does not displace the background rule that a court has discretion to award costs. Marx and the United States take the contrary view. They concede that the language does not expressly limit a court’s discretion to award costs under Rule 54(d)(1), Brief for Petitioner 10; Brief for United States 19, but argue that it does so by negative implication. Invoking the expressio unius canon of statutory construction, they contend that by specifying that a court may award attorney’s fees and costs when an action is brought in bad faith and for the purpose of harassment, Congress intended to preclude a court from awarding fees and costs when bad faith and purpose of harassment are absent. They further argue that unless §1692k(a)(3) sets forth the exclusive basis on which a court may award costs, the phrase “and costs” would be superfluous. According to this argument, Congress would have had no reason to specify that a court may award costs when a plaintiff brings an action in bad faith if it could have nevertheless awarded costs under Rule 54(d)(1). Finally, the United States argues that §1692k(a)(3) is a more specific cost statute that displaces Rule 54(d)(1)’s more general rule. The context surrounding §1692k(a)(3) persuades us that GRC’s interpretation is correct. 2 The argument of Marx and the United States depends critically on whether §1692k(a)(3)’s allowance of costs creates a negative implication that costs are unavailable in any other circumstances. The force of any negative implication, however, depends on context. We have long held that the expressio unius canon does not apply “unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it,” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003), and that the canon can be overcome by “contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion,” United States v. Vonn, 535 U.S. 55, 65 (2002). In this case, context persuades us that Congress did not intend §1692k(a)(3) to foreclose courts from awarding costs under Rule 54(d)(1). First, the background presumptions governing attorney’s fees and costs are a highly relevant contextual feature. As already explained, under Rule 54(d)(1) a prevailing party is entitled to recover costs from the losing party unless a federal statute, the Federal Rules of Civil Procedure, or a court order “provides otherwise.” The opposite presumption exists with respect to attorney’s fees. Under the “bedrock principle known as the ‘ “American Rule,” ’ ” “[e]ach litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise.” Hardt, 560 U. S., at ___ (slip op., at 9) (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 683 (1983)). Notwithstanding the American Rule, however, we have long recognized that federal courts have inherent power to award attorney’s fees in a narrow set of circumstances, including when a party brings an action in bad faith. See Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991) (explaining that a court has inherent power to award attorney’s fees to a party whose litigation efforts directly benefit others, to sanction the willful disobedience of a court order, and to sanction a party who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 257–259 (1975) (same). It is undisputed that §1692k(a)(3) leaves the background rules for attorney’s fees intact. The statute provides that when the plaintiff brings an action in bad faith, the court may award attorney’s fees to the defendant. But, as noted, a court has inherent power to award fees based on a litigant’s bad faith even without §1692k(a)(3). See Chambers, supra, at 45–46. Because §1692k(a)(3) codifies the background rule for attorney’s fees, it is dubious to infer congressional intent to override the background rule with respect to costs. The statute is best read as codifying a court’s pre-existing authority to award both attorney’s fees and costs.[6] Next, the second sentence of §1692k(a)(3) must be understood in light of the sentence that precedes it.[7] The first sentence of §1692k(a)(3) provides that defendants who violate the FDCPA are liable for the plaintiff’s attorney’s fees and costs. The second sentence of §1692k(a)(3) similarly provides that plaintiffs who bring an action in bad faith and for the purpose of harassment may be liable for the defendant’s fees and costs. If Congress had excluded “and costs” in the second sen- tence, plaintiffs might have argued that the expression of costs in the first sentence and the exclusion of costs in the second meant that defendants could only recover attorney’s fees when plaintiffs bring an action in bad faith. By adding “and costs” to the second sentence, Congress foreclosed that argument, thereby removing any doubt that defendants may recover costs as well as attorney’s fees when plaintiffs bring suits in bad faith. See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 226 (2008) (explaining that a phrase is not superfluous if used to “remove . . . doubt” about an issue); Fort Stewart Schools v. FLRA, 495 U.S. 641, 646 (1990) (explaining that “technically unnecessary” examples may have been “inserted out of an abundance of caution”). The fact that there might have been a negative implication that costs are precluded, depending on whether Congress included or excluded the phrase “and costs,” weighs against giving effect to any implied limitation. Finally, the language in §1692k(a)(3) sharply contrasts with other statutes in which Congress has placed conditions on awarding costs to prevailing defendants. See, e.g., 28 U. S. C. §1928 (“[N]o costs shall be included in such judgment, unless the proper disclaimer has been filed in the United States Patent and Trademark Office prior to the commencement of the action” (emphasis added)); 42 U. S. C. §1988(b) (“[I]n any action brought against a judicial officer . . . such officer shall not be held liable for any costs . . . unless such action was clearly in excess of such officer’s jurisdiction” (emphasis added)). Although Congress need not use explicit language to limit a court’s discretion under Rule 54(d)(1), its use of explicit language in other statutes cautions against inferring a limitation in §1692k(a)(3). These statutes confirm that Congress knows how to limit a court’s discretion under Rule 54(d)(1) when it so desires. See Small v. United States, 544 U.S. 385, 398 (2005) (Thomas, J., dissent- ing) (explaining that “Congress’ explicit use of [language] in other provisions shows that it specifies such restrictions when it wants to do so”). Had Congress intended the second sentence of §1692k(a)(3) to displace Rule 54(d)(1), it could have easily done so by using the word “only” before setting forth the condition “[o]n a finding by the court that an action . . . was brought in bad faith and for the purpose of harassment . . . .”[8] 3 As the above discussion suggests, we also are not persuaded by Marx’s objection that our interpretation renders the phrase “and costs” superfluous. As noted, supra, at 11, the phrase “and costs” would not be superfluous if Congress included it to remove doubt that defendants may recover costs when plaintiffs bring suits in bad faith. But even assuming that our interpretation renders the phrase “and costs” superfluous, that would not alter our conclusion. The canon against surplusage is not an absolute rule, see Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 299, n. 1 (2006) (“While it is generally presumed that statutes do not contain surplusage, instances of surplusage are not unknown”); Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253 (1992) (“Redundancies across statutes are not unusual events in drafting . . . ”), and it has considerably less force in this case. First, the canon against surplusage “assists only where a competing interpretation gives effect to every clause and word of a statute.” Microsoft Corp. v. i4i Ltd. Partnership, 564 U. S. ___, ___ (2011) (slip op., at 12) (internal quotation marks omitted). But, in this case, no interpretation of §1692k(a)(3) gives effect to every word. Both Marx and the United States admit that a court has inherent power to award attorney’s fees to a defendant when the plaintiff brings an action in bad faith. Because there was, consequently, no need for Congress to specify that courts have this power, §1692k(a)(3) is superfluous insofar as it addresses attorney’s fees. In light of this redundancy, we are not overly concerned that the reference to costs may be redundant as well. Second, redundancy is “hardly unusual” in statutes addressing costs. See id., at ___ (slip op., at 13). Numerous statutes overlap with Rule 54(d)(1). See, e.g., 12 U. S. C. §2607(d)(5) (“[T]he court may award to the prevailing party the court costs of the action”); §5565(b) (2006 ed., Supp. V) (“the [Consumer Financial Protection] Bureau . . . may recover its costs in connection with prosecuting such action if [it] . . . is the prevailing party in the action”); 15 U. S. C. §6104(d) (2006 ed.) (“The court . . . may award costs of suit and reasonable fees for attorneys and expert witnesses to the prevailing party”); §7706(f)(4) (“In the case of any successful action . . . the court, in its discretion, may award the costs of the action”); §7805(b)(3) (“[T]he court may award to the prevailing party costs”); §8131(2) (2006 ed., Supp. V) (“The court may also, in its discretion, award costs and attorneys fees to the prevailing party”); 29 U. S. C. §431(c) (2006 ed.) (“The court . . . may, in its discretion . . . allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action”); 42 U. S. C. §3612(p) (“[T]he court . . . in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee and costs”); §3613(c)(2) (“[T]he court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee and costs”); 47 U. S. C. §551(f)(2) (“[T]he court may award . . . other litigation costs reasonably incurred”). Finally, the canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme. Cf. United States v. Jica- rilla Apache Nation, 564 U. S. ___, ___ (2011) (slip op., at 22) (“ ‘As our cases have noted in the past, we are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law’ ” (quoting Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 837 (1988))). Because §1692k(a)(3) is not part of Rule 54(d)(1), the force of this canon is diminished. 4 Lastly, the United States contends that §1692k(a)(3) “establishes explicit cost-shifting standards that displace Rule 54(d)(1)’s more general default standard.” Brief for United States 17; see also EC Term of Years Trust v. United States, 550 U.S. 429, 433 (2007) (“ ‘[A] precisely drawn, detailed statute pre-empts more general remedies’ ” (quoting Brown v. GSA, 425 U.S. 820, 834 (1976))). Were we to accept the argument that §1692k(a)(3) has a negative implication, this argument might be persuasive. But the context of §1692k(a)(3) indicates that Congress was simply confirming the background rule that courts may award to defendants attorney’s fees and costs when the plaintiff brings an action in bad faith. The statute speaks to one type of case—the case of the bad-faith and harassing plaintiff. Because Marx did not bring this suit in bad faith, this case does not “fal[l] within the ambit of the more specific provision.” Brief for United States 13; see also RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U. S. ___, ___ (2012) (slip op., at 9) (“When the conduct at issue falls within the scope of both provisions, the specific presumptively governs . . .” (emphasis in original)).[9] Accordingly, this canon is inapplicable. III Because we conclude that the second sentence of §1692k(a)(3) is not contrary to Rule 54(d)(1), and, thus, does not displace a district court’s discretion to award costs under the Rule, we need not address GRC’s alternative argument that costs were required under Rule 68. The judgment of the Court of Appeals is affirmed. It is so ordered. Notes 1 The FDCPA is a consumer protection statute that prohibits certain abusive, deceptive, and unfair debt collection practices. See 15 U. S. C. §1692. The FDCPA’s private-enforcement provision, §1692k, author-izes any aggrieved person to recover damages from “any debt collector who fails to comply with any provision” of the FDCPA. §1692k(a). 2 Under Rule 68(d), if a defendant makes a settlement offer, and the plaintiff rejects it and later obtains a judgment that is less favorable than the one offered her, the plaintiff must pay the costs incurred by the defendant after the offer was made. See Fed. Rule Civ. Proc. 68(d) (“If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made”). 3 Prior to the adoption of the federal rules, prevailing parties were entitled to costs as of right in actions at law while courts had discretion to award costs in equity proceedings. See Ex parte Peterson, 253 U.S. 300, 317–318 (1920) (“While in equity proceedings the allowance and imposition of costs is, unless controlled by statute or rule of court, a matter of discretion, it has been uniformly held that in actions at law the prevailing party is entitled to costs as of right, except in those few cases where by express statutory provision or by established principles costs are denied” (citation omitted)); Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 387 (1884) (“[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs . . . ”). 4 The dissent provides no stable definition of “provides otherwise.” First, it argues that a statute “provides otherwise” if it is “different” from Rule 54(d)(1). Post, at 2 (opinion of Sotomayor, J.). That interpretation renders the Rule meaningless because every statute is “dif-ferent” insofar as it is not an exact copy of the Rule. Next, it argues that a statute “provides otherwise” if it is an “ ‘express provision’ relating to costs.” Post, at 2–3. Under that view, a statute providing that “the court may award costs to the prevailing party” would “provide otherwise.” We do not think such a statute provides otherwise—it provides “same-wise,” and the treatise on which the dissent relies supports our view. See 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2670, p. 258 (3d ed. 1998 and Supp. 2012) (“[Statutes that] are permissive in character . . . are not inconsistent with the discretion given the district court by Rule 54(d)”). Finally,the dissent seems to implicitly accept that “otherwise” means “to the contrary” in the course of arguing that a doctor’s instruction to take medication “ ‘in the morning’ ” would supersede an instruction on the medication label to “ ‘take [it] twice a day unless otherwise directed,’ ” because the patient would understand the doctor’s advice to mean that he should take the medicine “once a day, each morning.” Post, at 4. If the patient understands the doctor to mean “once a day, each morning,” we agree that such advice would “provide otherwise,” because the doctor’s order would be “contrary” to the label’s instruction. For the reasons set forth in Part II–B, however, we are not convinced that §1692k(a)(3) is “contrary” to Rule 54(d)(1). 5 It is undisputed that GRC is not entitled to costs under §1692k(a)(3) because the District Court did not find that Marx brought this action in bad faith. But Rule 54(d)(1) independently authorizes district courts to award costs to prevailing parties. The question in this case is not whether costs are allowed under §1692k(a)(3) but whether §1692k(a)(3) precludes an award of costs under Rule 54(d)(1). 6 Indeed, had Congress intended §1692k(a)(3) to foreclose a court’s discretion to award costs, it could not have chosen a more circuitous way to do so. The statute sets forth the circumstances in which a court “may” award costs. But under Marx’s and the United States’ view, the only consequence of the statute is to set forth the circumstances in which it may not award costs. 7 Section 1692k(a) provides: “Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of— “(1) any actual damages sustained by such person as a result of such failure; “(2)(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or “(B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and “(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” 8 Marx also suggests that §1692k(a)(3) is similar to the PipelineSafety Act, 49 U. S. C. §60121(b), which provides: “The court may award costs to a prevailing defendant when the action is unreasonable, frivolous, or meritless.” We have never had occasion to interpret §60121(b) and its interaction with Rule 54(d)(1). 9 Marx, the United States, and GRC also spar over the purpose of §1692k(a)(3). Brief for Petitioner 14–16; Brief for United States 21–28; Reply Brief 11–14; Brief for Respondent 30–43. Marx and the United States contend that Congress intended to limit a court’s discretion to award costs to prevailing defendants because FDCPA plaintiffs are often poor and may be deterred from challenging unlawful debt collection practices by the possibility of being held liable for the defendant’s costs. This purposive argument cannot overcome the language and context of §1692k(a)(3), but even if it could, we find it unpersuasive. Rule 54(d)(1) does not require courts to award costs to prevailing defendants. District courts may appropriately consider an FDCPA plaintiff’s indigency in deciding whether to award costs. See Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1165 (CA7 1983) (“[I]t is within the discretion of the district court to consider a plaintiff’s indigency in denying costs under Rule 54(d)”).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MARX v. GENERAL REVENUE CORP. certiorari to the united states court of appeals for the tenth circuit No. 11–1175. Argued November 7, 2012—Decided February 26, 2013 Petitioner Marx filed suit, alleging that General Revenue Corporation (GRC) violated the Fair Debt Collection Practices Act (FDCPA) by harassing and falsely threatening her in order to collect on a debt. The District Court ruled against Marx and awarded GRC costs pursuant to Federal Rule of Civil Procedure (FRCP) 54(d)(1), which gives district courts discretion to award costs to prevailing defendants “[u]nless a federal statute . . . provides otherwise.” Marx sought to vacate the award, arguing that the court’s discretion under Rule 54(d)(1) was displaced by 15 U. S. C. §1692k(a)(3), which provides, in pertinent part, that “[o]n a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” The District Court rejected Marx’s argument. The Tenth Circuit affirmed, in pertinent part, agreeing that costs are allowed under the Rule and concluding that nothing in the statute’s text, history, or purpose indicates that it was meant to displace the Rule. Held: Section §1692k(a)(3) is not contrary to, and, thus, does not displace a district court’s discretion to award costs under, Rule 54(d)(1). . (a) Rule 54(d)(1) gives courts discretion to award costs to prevailing parties, but this discretion can be displaced by a federal statute or FRCP that “provides otherwise,” i.e., is “contrary” to Rule 54(d)(1). Contrary to the argument of Marx and the United States, as amicus, language of the original 1937 version of the Rule does not suggest that any “express provision” for costs should displace Rule 54(d)(1), regardless of whether it is contrary to the Rule. . (b) Section 1692k(a)(3)’s language and context demonstrate that the provision is not contrary to Rule 54(d)(1). . (1) GRC argues that since §1692k(a)(3) does not address whether costs may be awarded in an FDCPA case brought in good faith, it does not set forth a standard that is contrary to the Rule and therefore does not displace the presumption that a court has discretion to award costs. Marx and the United States concede that the statute does not expressly limit a court’s discretion to award costs under the Rule, but argue that it does so by negative implication. They claim that unless §1692k(a)(3) sets forth the exclusive basis on which to award costs, the phrase “and costs” would be superfluous with Rule 54(d)(1). And the United States also argues that §1692k(a)(3)’s more specific cost statute displaces Rule 54(d)(1)’s more general rule. . (2) The argument of Marx and the United States depends critically on whether §1692k(a)(3)’s allowance of costs creates a negative implication that costs are unavailable in any other circumstances. The expressio unius canon that they invoke does not apply “unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it,” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168, and can be overcome by “contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion,” United States v. Vonn, 535 U.S. 55, 65. Here, context indicates that Congress did not intend §1692k(a)(3) to foreclose courts from awarding costs under the Rule. First, under the American Rule, each litigant generally pays his own attorney’s fees, but the Court has long recognized that federal courts have inherent power to award attorney’s fees in a narrow set of circumstances, e.g., when a party brings an action in bad faith. The statute is thus best read as codifying a court’s pre-existing authority to award both attorney’s fees and costs. Next, §1692k(a)(3)’s second sentence must be understood in light of its first, which provides an award of attorney’s fees and costs, but to prevailing plaintiffs. By adding “and costs” to the second sentence, Congress foreclosed the argument that defendants can only recover attorney’s fees when plaintiffs bring an action in bad faith and removed any doubt that defendants may recover costs as well as attorney’s fees in such cases. Finally, §1692k(a)(3)’s language sharply contrasts with that of other statutes in which Congress has placed conditions on awarding costs to prevailing defendants. See, e.g., 28 U. S. C. §1928. . (3) Even assuming that their surplusage argument is correct, the canon against surplusage is not absolute. First, the canon “assists only where a competing interpretation gives effect to every clause and word of a statute.” Microsoft Corp. v. i4i Ltd. Partnership, 564 U. S. ___, ___. Here, no interpretation of §1692k(a)(3) gives effect to every word. Second, redundancy is not unusual in statutes addressing costs. See, e.g., 12 U. S. C. §2607(d)(5). Finally, the canon is strongest when an interpretation would render superfluous another part of the same statutory scheme. Because §1692k(a)(3) is not part of Rule 54(d)(1), the force of this canon is diminished. . (4) Lastly, contrary to the United States’ claim that specific cost-shifting standards displace general ones, the context of the statute indicates that Congress was simply confirming the background presumption that courts may award to defendants attorney’s fees and costs when the plaintiff brings an action in bad faith. Because Marx did not bring this suit in bad faith, the specific provision is not applicable. . 668 F.3d 1174, affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Ginsburg, Breyer, and Alito, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Kagan, J., joined.

The Fair Debt Collection Practices Act (FDCPA), 15 U.S. C. §1692k(a)(3), provides that "[o]n a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs...." Petitioner Olivea Marx defaulted on a student loan guaranteed by EdFund, a division of respondent California Student Aid Commission. She then filed an enforcement action against GRC, alleging that GRC had violated the FDCPA by harassing her with phone calls several times a day and falsely threatening to garnish up to 50% of her wages and to take the money she owed directly from her bank account. Shortly after the complaint was filed, GRC made an offer of judgment under Federal Rule of Civil Procedure 68 to pay Marx $1,500 plus reasonable attorney’s fees and costs to settle any claims she had against it. Marx did not respond to the offer, and subsequently amended her complaint to add a claim that she had unlawfully sent a fax to her workplace requesting information about her employment status. Following a bench trial, the District Court found that Marx had failed to prove any violation, disallowed several items of costs, and ordered her to pay GRC $4,543.03. The Court of Appeals affirmed, but agreed only with part of the court's reasoning that costs were allowed under Rule 68(d), which provides that, on a finding that a court finds a court to have brought an action against a party for bad faith, and for harassment, it may award such fees to the prevailing party. Held: The second sentence is not contrary to Rule 54(d)(1), and thus does not displace a district court's discretion to award costs under the Rule.. (a) Because the Rule grants district courts discretion to award costs, a statute is contrary to the Rule if it limits that discretion. A statute may limit a court's dis- cretion in several ways, and need not expressly state that it is displacing Rule 54 (d)( 1) to do so. In this case, the canon against surplusage is strongest when an interpretation would render superfluous another part of that same statutory scheme. . (b) The canon against redundancies is strongest in this case. The statute is best read as codifying a court that has pre-existing authority to award attorney's fees to prevailing parties. But it is silent where bad faith and purpose of harassment are absent, and silence does not disturb the background rule that the court has discretion under Rule 54. P.. (c) There is no merit to Marx and the United States' contention that Congress intended the expressio unius canon of statutory construction to preclude a court from awarding attorney's costs when a plaintiff brings a bad-faith and harassment action. That canon is contrary simply because it sets forth the exclusive basis for awarding costs. Moreover, the language of the canon does not purport to remove doubt that defendants may recover costs when plaintiffs bring a bad faith action, since there was, consequently, no need for Congress to specify that courts have this power, and because it does so by negative implication. It is doubtful that the canon, which sets forth circumstances in which courts may award attorney fees based on a litigant's bad faith when the plaintiff brings an action in bad faith, would have been superfluous if it had been included in the Rule, since it is clear that Congress knew how to limit such discretion when it so desires, and since it could have easily done so by using the word "only" before setting forth the condition of a court finding a finding of a finding to the contrary. Cf. Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1165 (CA7 1983). Thus, even assuming, arguendo, that Marx does not bring this suit in bad bad faith because the court did not find that Marx brought the action in good faith, that case does not fall within the canon of the more general default standard, since that canon is best viewed in light of the sentence that precedes it, which explicitly authorizes district courts to award costs to prevailing defendants. See, e.g., 7 U. S. 853 F. 2d 207, 210 (CA9), which states that: 1. Because the statute expressly codifies the background rules for attorney-s fees, it is dubious to infer congressional intent to override the Rule with respect to costs. The statute does address this type of case, i.e., cases in which plaintiff brings the action to bad faith. However, the second sentence of the statute is superfluous insofar as it provides that plaintiffs who violate the Federal District Court are liable for the plaintiff's attorney's attorney�

2012_12-207

https://www.oyez.org/cases/2012/12-207

. In 2003 a man concealing his face and armed with a gun broke into a woman’s home in Salisbury, Maryland. He raped her. The police were unable to identify or apprehend the assailant based on any detailed description or other evidence they then had, but they did obtain from the victim a sample of the perpetrator’s DNA. In 2009 Alonzo King was arrested in Wicomico County, Maryland, and charged with first- and second-degree assault for menacing a group of people with a shotgun. As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match the DNA taken from the Salisbury rape victim. King was tried and convicted for the rape. Additional DNA samples were taken from him and used in the rape trial, but there seems to be no doubt that it was the DNA from the cheek sample taken at the time he was booked in 2009 that led to his first having been linked to the rape and charged with its commission. The Court of Appeals of Maryland, on review of King’s rape conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person. It set the rape conviction aside. This Court granted certiorari and now reverses the judgment of the Maryland court. I When King was arrested on April 10, 2009, for menac-ing a group of people with a shotgun and charged in state court with both first- and second-degree assault, he was processed for detention in custody at the Wicomico County Central Booking facility. Booking personnel used a cheek swab to take the DNA sample from him pursuant to provisions of the Maryland DNA Collection Act (or Act). On July 13, 2009, King’s DNA record was uploaded to the Maryland DNA database, and three weeks later, on August 4, 2009, his DNA profile was matched to the DNA sample collected in the unsolved 2003 rape case. Once the DNA was matched to King, detectives presented the forensic evidence to a grand jury, which indicted him for the rape. Detectives obtained a search warrant and took a second sample of DNA from King, which again matched the evidence from the rape. He moved to suppress the DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment. The Circuit Court Judge upheld the statute as constitutional. King pleaded not guilty to the rape charges but was convicted and sentenced to life in prison without the possibility of parole. In a divided opinion, the Maryland Court of Appeals struck down the portions of the Act authorizing collection of DNA from felony arrestees as unconstitutional. The majority concluded that a DNA swab was an unreasonable search in violation of the Fourth Amendment because King’s “expectation of privacy is greater than the State’s purported interest in using King’s DNA to identify him.” 425 Md. 550, 561, 42 A.3d 549, 556 (2012). In reach- ing that conclusion the Maryland Court relied on the deci-sions of various other courts that have concluded that DNA identification of arrestees is impermissible. See, e.g., People v. Buza, 129 Cal. Rptr. 3d 753 (App. 2011) (offi-cially depublished); Mario W. v. Kaipio, 228 Ariz. 207, 265 P.3d 389 (App. 2011). Both federal and state courts have reached differing conclusions as to whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges. This Court granted certiorari, 568 U. S. ___ (2012), to address the question. King is the respondent here. II The advent of DNA technology is one of the most significant scientific advancements of our era. The full potential for use of genetic markers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed. Since the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986, see J. Butler, Fundamentals of Forensic DNA Typing 5 (2009) (hereinafter Butler), law enforcement, the defense bar, and the courts have acknowledged DNA testing’s “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.” District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 55 (2009). A The current standard for forensic DNA testing relies on an analysis of the chromosomes located within the nucleus of all human cells. “The DNA material in chromosomes is composed of ‘coding’ and ‘noncoding’ regions. The coding regions are known as genes and contain the information necessary for a cell to make proteins. . . . Non-protein-coding regions . . . are not related directly to making proteins, [and] have been referred to as ‘junk’ DNA.” Butler 25. The adjective “junk” may mislead the layperson, for in fact this is the DNA region used with near certainty to identify a person. The term apparently is intended to indicate that this particular noncoding region, while useful and even dispositive for purposes like identity, does not show more far-reaching and complex characteristics like genetic traits. Many of the patterns found in DNA are shared among all people, so forensic analysis focuses on “repeated DNA sequences scattered throughout the human genome,” known as “short tandem repeats” (STRs). Id., at 147–148. The alternative possibilities for the size and frequency of these STRs at any given point along a strand of DNA are known as “alleles,” id., at 25; and multiple alleles are analyzed in order to ensure that a DNA profile matches only one individual. Future refinements may improve pres- ent technology, but even now STR analysis makes it “possible to determine whether a biological tissue matches a suspect with near certainty.” Osborne, supra, at 62. The Act authorizes Maryland law enforcement author-ities to collect DNA samples from “an individual who is charged with . . . a crime of violence or an attempt to commit a crime of violence; or . . . burglary or an attempt to commit burglary.” Md. Pub. Saf. Code Ann. §2–504(a)(3)(i) (Lexis 2011). Maryland law defines a crime of violence to include murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes. Md. Crim. Law Code Ann. §14–101 (Lexis 2012). Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). Md. Pub. Saf. Code Ann. §2–504(d)(1) (Lexis 2011). It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. If “all qualifying criminal charges are determined to be unsupported by probable cause . . . the DNA sample shall be immediately destroyed.” §2–504(d)(2)(i). DNA samples are also destroyed if “a criminal action begun against the individual . . . does not result in a conviction,” “the conviction is finally reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional pardon.” §2–511(a)(1). The Act also limits the information added to a DNA database and how it may be used. Specifically, “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” §2–505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of indi-viduals as specified in this subtitle.” §2–512(c). Tests for familial matches are also prohibited. See §2–506(d) (“A person may not perform a search of the statewide DNA data base for the purpose of identification of an offender in connection with a crime for which the offender may be a biological relative of the individual from whom the DNA sample was acquired”). The officers involved in taking and analyzing respondent’s DNA sample complied with the Act in all respects. Respondent’s DNA was collected in this case using a common procedure known as a “buccal swab.” “Buccal cell collection involves wiping a small piece of filter paper or a cotton swab similar to a Q-tip against the inside cheek of an individual’s mouth to collect some skin cells.” Butler 86. The procedure is quick and painless. The swab touches inside an arrestee’s mouth, but it requires no “surgical intrusio[n] beneath the skin,” Winston v. Lee, 470 U.S. 753, 760 (1985), and it poses no “threa[t] to the health or safety” of arrestees, id., at 763. B Respondent’s identification as the rapist resulted in part through the operation of a national project to standardize collection and storage of DNA profiles. Authorized by Congress and supervised by the Federal Bureau of Investigation, the Combined DNA Index System (CODIS) connects DNA laboratories at the local, state, and national level. Since its authorization in 1994, the CODIS system has grown to include all 50 States and a number of federal agencies. CODIS collects DNA profiles provided by local laboratories taken from arrestees, convicted offenders, and forensic evidence found at crime scenes. To participate in CODIS, a local laboratory must sign a memorandum of understanding agreeing to adhere to quality standards and submit to audits to evaluate compliance with the federal standards for scientifically rigorous DNA testing. Butler 270. One of the most significant aspects of CODIS is the standardization of the points of comparison in DNA analysis. The CODIS database is based on 13 loci at which the STR alleles are noted and compared. These loci make possible extreme accuracy in matching individual samples, with a “random match probability of approximately 1 in 100 trillion (assuming unrelated individuals).” Ibid. The CODIS loci are from the non-protein coding junk regions of DNA, and “are not known to have any association with a genetic disease or any other genetic predisposition. Thus, the information in the database is only useful for human identity testing.” Id., at 279. STR information is recorded only as a “string of numbers”; and the DNA identification is accompanied only by information denoting the laboratory and the analyst responsible for the submission. Id., at 270. In short, CODIS sets uniform national standards for DNA matching and then facilitates connections between local law enforcement agencies who can share more specific information about matched STR profiles. All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice. See Brief for Respondent 48. Twenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees. See Brief for State of California et al. as Amici Curiae 4, n. 1 (States Brief) (collecting state statutes). Although those statutes vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law. At issue is a standard, expanding technology already in widespread use throughout the Nation. III A Although the DNA swab procedure used here presents a question the Court has not yet addressed, the framework for deciding the issue is well established. The Fourth Amendment, binding on the States by the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It can be agreed that using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search. Virtually any “intrusio[n] into the human body,” Schmerber v. California, 384 U.S. 757, 770 (1966), will work an invasion of “ ‘cherished personal security’ that is subject to constitutional scrutiny,” Cupp v. Murphy, 412 U.S. 291, 295 (1973) (quoting Terry v. Ohio, 392 U.S. 1, 24–25 (1968)). The Court has applied the Fourth Amendment to police efforts to draw blood, see Schmerber, supra; Missouri v. McNeely, 569 U. S. ___ (2013), scraping an arrestee’s fingernails to obtain trace evidence, see Cupp, supra, and even to “a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis,” Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616 (1989). A buccal swab is a far more gentle process than a venipuncture to draw blood. It involves but a light touch on the inside of the cheek; and although it can be deemed a search within the body of the arrestee, it requires no “surgical intrusions beneath the skin.” Winston, 470 U. S., at 760. The fact than an intrusion is negligible is of central relevance to determining reasonableness, although it is still a search as the law defines that term. B To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis. “[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Schmerber, supra, at 768. “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ ” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). In giving content to the inquiry whether an intrusion is reasonable, the Court has preferred “some quantum of individualized suspicion . . . [as] a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible requirement of such suspicion.” United States v. Martinez-Fuerte, 428 U.S. 543, 560–561 (1976) (citation and footnote omitted). In some circumstances, such as “[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” Illinois v. McArthur, 531 U.S. 326, 330 (2001). Those circumstances diminish the need for a warrant, either because “the public interest is such that neither a warrant nor probable cause is required,” Maryland v. Buie, 494 U.S. 325, 331 (1990), or because an individual is already on notice, for instance because of his employment, see Skinner, supra, or the conditions of his release from government custody, see Samson v. California, 547 U.S. 843 (2006), that some reasonable police intrusion on his pri-vacy is to be expected. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by the “interpo[lation of] a neutral magistrate between the citizen and the law enforcement officer.” Treasury Employees v. Von Raab, 489 U.S. 656, 667 (1989). The instant case can be addressed with this background. The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees charged with serious crimes must furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks. The arrestee is already in valid police custody for a serious offense supported by probable cause. The DNA collection is not subject to the judgment of officers whose perspective might be “colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.’ ” Terry, supra, at 12 (quoting Johnson v. United States, 333 U.S. 10, 14 (1948)). As noted by this Court in a different but still instructive context involving blood testing, “[b]oth the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined nar- rowly and specifically in the regulations that authorize them . . . . Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate.” Skinner, supra, at 622. Here, the search effected by the buccal swab of respondent falls within the category of cases this Court has analyzed by reference to the proposition that the “touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.” Samson, supra, at 855, n. 4. Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. Urgent government interests are not a license for indiscriminate police behavior. To say that no warrant is required is merely to acknowledge that “rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” McArthur, supra, at 331. This application of “traditional standards of reasonableness” requires a court to weigh “the promotion of legitimate governmen- tal interests” against “the degree to which [the search] intrudes upon an individual’s privacy.” Wyoming v. Houghton, 526 U.S. 295, 300 (1999). An assessment of reasonableness to determine the lawfulness of requiring this class of arrestees to provide a DNA sample is central to the instant case. IV A The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody. It is beyond dispute that “probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Gerstein v. Pugh, 420 U.S. 103, 113–114 (1975). Also uncontested is the “right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested.” Weeks v. United States, 232 U.S. 383, 392 (1914), overruled on other grounds, Mapp v. Ohio, 367 U.S. 643 (1961). “The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged.” United States v. Robinson, 414 U.S. 218, 224 (1973). Even in that context, the Court has been clear that individual suspicion is not necessary, because “[t]he constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person ar-rested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.” Michigan v. DeFillippo, 443 U.S. 31, 35 (1979). The “routine administrative procedure[s] at a police sta-tion house incident to booking and jailing the suspect” derive from different origins and have different constitutional justifications than, say, the search of a place, Illinois v. Lafayette, 462 U.S. 640, 643 (1983); for the search of a place not incident to an arrest depends on the “fair probability that contraband or evidence of a crime will be found in a particular place,” Illinois v. Gates, 462 U.S. 213, 238 (1983). The interests are further different when an individual is formally processed into police custody. Then “the law is in the act of subjecting the body of the accused to its physical dominion.” People v. Chiagles, 237 N.Y. 193, 197, 142 N.E. 583, 584 (1923) (Cardozo, J.). When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests. First, “[i]n every criminal case, it is known and must be known who has been arrested and who is being tried.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 191 (2004). An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee’s birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody. “It is a well recognized aspect of criminal conduct that the per-petrator will take unusual steps to conceal not only his conduct, but also his identity. Disguises used while committing a crime may be supplemented or replaced by changed names, and even changed physical features.” Jones v. Murray, 962 F.2d 302, 307 (CA4 1992). An “arrestee may be carrying a false ID or lie about his identity,” and “criminal history records . . . can be inaccurate or incomplete.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___ (2012) (slip op., at 16). A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention. It is a common occurrence that “[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals. Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.” Id., at ___ (slip op., at 14) (citations omitted). Police already seek this crucial identifying information. They use routine and accepted means as varied as comparing the suspect’s booking photograph to sketch artists’ depictions of persons of interest, showing his mugshot to potential witnesses, and of course making a computerized comparison of the arrestee’s fingerprints against electronic databases of known criminals and unsolved crimes. In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides. The task of identification necessarily entails searching public and police records based on the identifying information provided by the arrestee to see what is already known about him. The DNA collected from arrestees is an irrefutable identification of the person from whom it was taken. Like a fingerprint, the 13 CODIS loci are not themselves evidence of any particular crime, in the way that a drug test can by itself be evidence of illegal narcotics use. A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect the use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene. See Tr. of Oral Arg. 19. DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police. Those records may be linked to the arrestee by a variety of relevant forms of identification, including name, alias, date and time of previous convictions and the name then used, photograph, Social Security number, or CODIS profile. These data, found in official records, are checked as a routine matter to produce a more comprehensive record of the suspect’s complete identity. Finding occurrences of the arrestee’s CODIS profile in outstanding cases is consistent with this common practice. It uses a different form of identification than a name or fingerprint, but its function is the same. Second, law enforcement officers bear a responsibility for ensuring that the custody of an arrestee does not create inordinate “risks for facility staff, for the existing detainee population, and for a new detainee.” Florence, supra, at ___ (slip op., at 10). DNA identification can provide untainted information to those charged with de-taining suspects and detaining the property of any felon. For these purposes officers must know the type of person whom they are detaining, and DNA allows them to make critical choices about how to proceed. “Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and al- low the police to concentrate their efforts elsewhere. Identity may prove particularly important in [certain cases, such as] where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Hiibel, supra, at 186. Recognizing that a name alone cannot address this interest in identity, the Court has approved, for example, “a visual inspection for certain tattoos and other signs of gang affiliation as part of the intake process,” because “[t]he identification and isolation of gang members before they are admitted protects everyone.” Florence, supra, at ___ (slip op., at 11). Third, looking forward to future stages of criminal prosecution, “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials.” Bell v. Wolfish, 441 U.S. 520, 534 (1979). A person who is arrested for one offense but knows that he has yet to answer for some past crime may be more inclined to flee the instant charges, lest continued contact with the criminal justice system expose one or more other serious offenses. For example, a defendant who had committed a prior sexual assault might be inclined to flee on a burglary charge, knowing that in every State a DNA sample would be taken from him after his conviction on the burglary charge that would tie him to the more serious charge of rape. In addition to subverting the administration of justice with respect to the crime of arrest, this ties back to the interest in safety; for a detainee who absconds from custody presents a risk to law enforcement officers, other detainees, victims of previous crimes, witnesses, and society at large. Fourth, an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and this will inform a court’s determination whether the individual should be released on bail. “The government’s interest in preventing crime by arrestees is both legitimate and compelling.” United States v. Salerno, 481 U.S. 739, 749 (1987). DNA identification of a suspect in a violent crime provides critical information to the police and judicial officials in making a determination of the arrestee’s future dangerousness. This inquiry always has entailed some scrutiny beyond the name on the defendant’s driver’s license. For example, Maryland law requires a judge to take into account not only “the nature and circumstances of the offense charged” but also “the defendant’s family ties, employment status and history, financial resources, reputation, character and mental condition, length of res-idence in the community.” 1 Md. Rules 4–216(f)(1)(A), (C) (2013). Knowing that the defendant is wanted for a previous violent crime based on DNA identification is especially probative of the court’s consideration of “the danger of the defendant to the alleged victim, another person, or the community.” Rule 4–216(f)(1)(G); see also 18 U. S. C. §3142 (2006 ed. and Supp. V) (similar requirements). This interest is not speculative. In considering laws to require collecting DNA from arrestees, government agencies around the Nation found evidence of numerous cases in which felony arrestees would have been identified as violent through DNA identification matching them to previous crimes but who later committed additional crimes because such identification was not used to detain them. See Denver’s Study on Preventable Crimes (2009) (three examples), online at http://www.denverda.org/DNA_ Documents/Denver%27s%20Preventable%20Crimes%20 Study.pdf (all Internet materials as visited May 31, 2013, and available in Clerk of Court’s case file); Chi-cago’s Study on Preventable Crimes (2005) (five exam- ples), online at http://www.denverda.org/DNA_Documents/ Arrestee_Database/Chicago%20Preventable%20Crimes- Final.pdf; Maryland Study on Preventable Crimes (2008) (three examples), online at http://www.denverda.org/DNA_ Documents/MarylandDNAarresteestudy.pdf. Present capabilities make it possible to complete a DNA identification that provides information essential to determining whether a detained suspect can be released pending trial. See, e.g., States Brief 18, n. 10 (“DNA identification database samples have been processed in as few as two days in California, although around 30 days has been average”). Regardless of when the initial bail decision is made, release is not appropriate until a further determination is made as to the person’s identity in the sense not only of what his birth certificate states but also what other records and data disclose to give that identity more meaning in the whole context of who the person really is. And even when release is permitted, the background identity of the suspect is necessary for determining what conditions must be met before release is allowed. If release is authorized, it may take time for the conditions to be met, and so the time before actual release can be substantial. For example, in the federal system, defendants released conditionally are detained on average for 112 days; those released on unsecured bond for 37 days; on personal recognizance for 36 days; and on other financial conditions for 27 days. See Dept. of Justice, Bureau of Justice Statistics, Compendium of Federal Justice Statistics 45 (NCJ–213476, Dec. 2006) online at http://bjs.gov/ content/pub/pdf/cfjs04.pdf. During this entire period, ad-ditional and supplemental data establishing more about the person’s identity and background can provide critical information relevant to the conditions of release and whether to revisit an initial release determination. The facts of this case are illustrative. Though the record is not clear, if some thought were being given to releasing the respondent on bail on the gun charge, a release that would take weeks or months in any event, when the DNA report linked him to the prior rape, it would be relevant to the conditions of his release. The same would be true with a supplemental fingerprint report. Even if an arrestee is released on bail, development of DNA identification revealing the defendant’s unknown violent past can and should lead to the revocation of his conditional release. See 18 U. S. C. §3145(a) (providing for revocation of release); see also States Brief 11–12 (discussing examples where bail and diversion determinations were reversed after DNA identified the arrestee’s vio- lent history). Pretrial release of a person charged with a dangerous crime is a most serious responsibility. It is reason-able in all respects for the State to use an accepted database to determine if an arrestee is the object of suspicion in other serious crimes, suspicion that may provide a strong incentive for the arrestee to escape and flee. Finally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense. “[P]rompt [DNA] testing . . . would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of . . . innocent people.” J. Dwyer, P. Neufeld, & B. Scheck, Actual Innocence 245 (2000). Because proper processing of arrestees is so important and has consequences for every stage of the criminal process, the Court has recognized that the “governmen- tal interests underlying a station-house search of the ar-restee’s person and possessions may in some circumstances be even greater than those supporting a search imme-diately following arrest.” Lafayette, 462 U. S., at 645. Thus, the Court has been reluctant to circumscribe the authority of the police to conduct reasonable booking searches. For example, “[t]he standards traditionally governing a search incident to lawful arrest are not . . . commuted to the stricter Terry standards.” Robinson, 414 U. S., at 234. Nor are these interests in identifica- tion served only by a search of the arrestee himself. “[I]nspection of an arrestee’s personal property may assist the police in ascertaining or verifying his identity.” Lafayette, supra, at 646. And though the Fifth Amendment’s protection against self-incrimination is not, as a general rule, governed by a reasonableness standard, the Court has held that “questions . . . reasonably related to the police’s administrative concerns . . . fall outside the protections of Miranda [v. Arizona, 384 U.S. 436 (1966)] and the answers thereto need not be suppressed.” Pennsylvania v. Muniz, 496 U.S. 582, 601–602 (1990). B DNA identification represents an important advance in the techniques used by law enforcement to serve le-gitimate police concerns for as long as there have been arrests, concerns the courts have acknowledged and approved for more than a century. Law enforcement agencies routinely have used scientific advancements in their standard procedures for the identification of arrestees. “Police had been using photography to capture the faces of criminals almost since its invention.” S. Cole, Suspect Identities 20 (2001). Courts did not dispute that practice, concluding that a “sheriff in making an arrest for a felony on a warrant has the right to exercise a discretion . . . , [if] he should deem it necessary to the safe-keeping of a prisoner, and to prevent his escape, or to enable him the more readily to retake the prisoner if he should escape, to take his photograph.” State ex rel. Bruns v. Clausmier, 154 Ind. 599, 601, 603, 57 N.E. 541, 542 (1900). By the time that it had become “the daily practice of the police officers and detectives of crime to use photographic pictures for the discovery and identification of criminals,” the courts likewise had come to the conclusion that “it would be [a] matter of regret to have its use unduly restricted upon any fanciful theory or constitutional privilege.” Shaffer v. United States, 24 App. D. C. 417, 426 (1904). Beginning in 1887, some police adopted more exacting means to identify arrestees, using the system of precise physical measurements pioneered by the French anthropologist Alphonse Bertillon. Bertillon identification consisted of 10 measurements of the arrestee’s body, along with a “scientific analysis of the features of the face and an exact anatomical localization of the various scars, marks, &c., of the body.” Defense of the Bertillon System, N. Y. Times, Jan. 20, 1896, p. 3. “[W]hen a prisoner was brought in, his photograph was taken according to the Bertillon system, and his body measurements were then made. The measurements were made . . . and noted down on the back of a card or a blotter, and the photograph of the prisoner was expected to be placed on the card. This card, therefore, furnished both the likeness and description of the prisoner, and was placed in the rogues’ gallery, and copies were sent to various cities where similar records were kept.” People ex rel. Jones v. Diehl, 53 App. Div. 645, 646, 65 N.Y.S. 801, 802 (1900). As in the present case, the point of taking this information about each arrestee was not limited to verifying that the proper name was on the indictment. These procedures were used to “facilitate the recapture of escaped prisoners,” to aid “the investigation of their past records and personal history,” and “to preserve the means of identification for . . . fu- ture supervision after discharge.” Hodgeman v. Olsen, 86 Wash. 615, 619, 150 P. 1122, 1124 (1915); see also McGovern v. Van Riper, 137 N. J. Eq. 24, 33–34, 43 A.2d 514, 519 (Ch. 1945) (“[C]riminal identification is said to have two main purposes: (1) The identification of the accused as the person who committed the crime for which he is being held; and, (2) the identification of the accused as the same person who has been previously charged with, or convicted of, other offenses against the criminal law”). Perhaps the most direct historical analogue to the DNA technology used to identify respondent is the familiar practice of fingerprinting arrestees. From the advent of this technique, courts had no trouble determining that fingerprinting was a natural part of “the administrative steps incident to arrest.” County of Riverside v. McLaughlin, 500 U.S. 44, 58 (1991). In the seminal case of United States v. Kelly, 55 F.2d 67 (CA2 1932), Judge Augustus Hand wrote that routine fingerprinting did not violate the Fourth Amendment precisely because it fit within the accepted means of processing an arrestee into custody: “Finger printing seems to be no more than an exten-sion of methods of identification long used in dealing with persons under arrest for real or supposed vio-lations of the criminal laws. It is known to be a very certain means devised by modern science to reach the desired end, and has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification. . . . . . “We find no ground in reason or authority for interfering with a method of identifying persons charged with crime which has now become widely known and frequently practiced.” Id., at 69–70. By the middle of the 20th century, it was considered “elementary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification processes.” Smith v. United States, 324 F.2d 879, 882 (CADC 1963) (Burger, J.) (citations omitted). DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, see Part V, infra, and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his fingerprints cannot escape the revealing power of his DNA. The respondent’s primary objection to this analogy is that DNA identification is not as fast as fingerprinting, and so it should not be considered to be the 21st-century equivalent. See Tr. of Oral Arg. 53. But rapid analysis of fingerprints is itself of recent vintage. The FBI’s vaunted Integrated Automated Fingerprint Identification System (IAFIS) was only “launched on July 28, 1999. Prior to this time, the processing of . . . fingerprint submissions was largely a manual, labor-intensive process, taking weeks or months to process a single submission.” Federal Bureau of Investigation, Integrated Automated Fingerprint Identification System, online at http://www.fbi.gov/about-us/cjis/ fingerprints_biometrics/iafis/iafis. It was not the advent of this technology that rendered fingerprint analysis constitutional in a single moment. The question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search. Cf. Ontario v. Quon, 560 U. S. ___, ___ (2010) (slip op., at 15). Given the importance of DNA in the identification of police records pertaining to arrestees and the need to refine and confirm that identity for its important bearing on the decision to continue release on bail or to impose of new conditions, DNA serves an essential purpose despite the existence of delays such as the one that occurred in this case. Even so, the delay in processing DNA from arrestees is being reduced to a substantial degree by rapid technical advances. See, e.g., At-torney General DeWine Announces Significant Drop in DNA Turnaround Time (Jan. 4, 2013) (DNA processing time reduced from 125 days in 2010 to 20 days in 2012), online at http://ohioattorneygeneral.gov/Media/News-Releases/January- 2013/Attorney-General-DeWine-Announces-Significant- Drop; Gov. Jindal Announces Elimination of DNA Backlog, DNA Unit Now Operating in Real Time (Nov. 17, 2011) (average DNA report time reduced from a year or more in 2009 to 20 days in 2011), online at http:// www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail&articleID=3102. And the FBI has already begun testing devices that will enable police to process the DNA of arrestees within 90 minutes. See Brief for National District Attorneys Association as Amicus Curiae 20–21; Tr. of Oral Arg. 17. An assessment and understanding of the reasonableness of this minimally invasive search of a person detained for a serious crime should take account of these technical advances. Just as fingerprinting was constitutional for generations prior to the introduction of IAFIS, DNA identification of arrestees is a permissible tool of law enforcement today. New technology will only further improve its speed and therefore its effectiveness. And, as noted above, actual release of a serious offender as a routine matter takes weeks or months in any event. By identifying not only who the arrestee is but also what other available records disclose about his past to show who he is, the police can ensure that they have the proper person under arrest and that they have made the necessary arrangements for his custody; and, just as important, they can also prevent suspicion against or prosecution of the innocent. In sum, there can be little reason to question “the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.” 3 W. LaFave, Search and Seizure §5.3(c), p. 216 (5th ed. 2012). To that end, courts have confirmed that the Fourth Amendment allows police to take certain routine “administrative steps incident to arrest—i.e., . . . book[ing], photograph[ing], and fingerprint[ing].” McLaughlin, 500 U. S., at 58. DNA identification of arrestees, of the type approved by the Maryland statute here at issue, is “no more than an extension of methods of identification long used in dealing with persons under arrest.” Kelly, 55 F. 2d, at 69. In the balance of reasonableness required by the Fourth Amendment, therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest. V A By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one. True, a significant government interest does not alone suffice to justify a search. The government interest must outweigh the degree to which the search in-vades an individual’s legitimate expectations of privacy. In considering those expectations in this case, however, the necessary predicate of a valid arrest for a serious offense is fundamental. “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” New Jersey v. T. L. O., 469 U.S. 325, 337 (1985). “[T]he legitimacy of certain privacy expectations vis-à-vis the State may depend upon the individual’s legal relationship with the State.” Vernonia School Dist. 47J, 515 U. S., at 654. The reasonableness of any search must be considered in the context of the person’s legitimate expectations of privacy. For example, when weighing the invasiveness of urinalysis of high school athletes, the Court noted that “[l]egitimate privacy expectations are even less with regard to student athletes. . . . Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.” Id., at 657. Likewise, the Court has used a context-specific benchmark inapplicable to the public at large when “the expectations of privacy of covered employees are diminished by reason of their participa-tion in an industry that is regulated pervasively,” Skinner, 489 U. S., at 627, or when “the ‘operational realities of the workplace’ may render entirely reasonable certain work-related intrusions by supervisors and co-workers that might be viewed as unreasonable in other contexts,” Von Raab, 489 U. S., at 671. The expectations of privacy of an individual taken into police custody “necessarily [are] of a diminished scope.” Bell, 441 U. S., at 557. “[B]oth the person and the property in his immediate possession may be searched at the station house.” United States v. Edwards, 415 U.S. 800, 803 (1974). A search of the detainee’s person when he is booked into custody may “ ‘involve a relatively extensive exploration,’ ” Robinson, 414 U. S., at 227, including “requir[ing] at least some detainees to lift their genitals or cough in a squatting position,” Florence, 566 U. S., at ___ (slip op., at 13). In this critical respect, the search here at issue differs from the sort of programmatic searches of either the public at large or a particular class of regulated but otherwise law-abiding citizens that the Court has previously labeled as “ ‘special needs’ ” searches. Chandler v. Miller, 520 U.S. 305, 314 (1997). When the police stop a motorist at a checkpoint, see Indianapolis v. Edmond, 531 U.S. 32 (2000), or test a political candidate for illegal narcotics, see Chandler, supra, they intrude upon substantial expectations of privacy. So the Court has insisted on some purpose other than “to detect evidence of ordinary criminal wrongdoing” to justify these searches in the absence of individualized suspicion. Edmond, supra, at 38. Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, however, his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen. The special needs cases, though in full accord with the result reached here, do not have a direct bearing on the issues presented in this case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy. The reasonableness inquiry here considers two other circumstances in which the Court has held that particularized suspicion is not categorically required: “diminished expectations of privacy [and] minimal intrusions.” McArthur, 531 U. S., at 330. This is not to suggest that any search is acceptable solely because a person is in custody. Some searches, such as invasive surgery, see Winston, 470 U.S. 753, or a search of the arrestee’s home, see Chimel v. California, 395 U.S. 752 (1969), involve either greater intrusions or higher expectations of privacy than are present in this case. In those situations, when the Court must “balance the privacy-related and law enforcement-related concerns to determine if the intrusion was rea-sonable,” McArthur, supra, at 331, the privacy-related concerns are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee. Here, by contrast to the approved standard procedures incident to any arrest detailed above, a buccal swab involves an even more brief and still minimal intrusion. A gentle rub along the inside of the cheek does not break the skin, and it “involves virtually no risk, trauma, or pain.” Schmerber, 384 U. S., at 771. “A crucial factor in analyzing the magnitude of the intrusion . . . is the extent to which the procedure may threaten the safety or health of the individual,” Winston, supra, at 761, and nothing suggests that a buccal swab poses any physical danger whatsoever. A brief intrusion of an arrestee’s person is subject to the Fourth Amendment, but a swab of this nature does not increase the indignity already attendant to normal incidents of arrest. B In addition the processing of respondent’s DNA sam-ple’s 13 CODIS loci did not intrude on respondent’s privacy in a way that would make his DNA identification unconstitutional. First, as already noted, the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee. While science can always progress further, and those progressions may have Fourth Amendment consequences, alleles at the CODIS loci “are not at present revealing information beyond identification.” Katsanis & Wagner, Characterization of the Standard and Recommended CODIS Markers, 58 J. Forensic Sci. S169, S171 (2013). The argument that the testing at issue in this case reveals any private medical information at all is open to dispute. And even if non-coding alleles could provide some information, they are not in fact tested for that end. It is undisputed that law enforcement officers analyze DNA for the sole purpose of generating a unique identifying number against which future samples may be matched. This parallels a similar safeguard based on actual practice in the school drug-testing context, where the Court deemed it “significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic.” Vernonia School Dist. 47J, 515 U. S., at 658. If in the future police analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here. Finally, the Act provides statutory protections that guard against further invasion of privacy. As noted above, the Act requires that “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” Md. Pub. Saf. Code Ann. §2–505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of individuals as specified in this subtitle.” §2–512(c). This Court has noted often that “a ‘statutory or regulatory duty to avoid unwarranted disclosures’ generally allays . . . privacy concerns.” NASA v. Nelson, 562 U. S. ___, ___ (2011) (slip op., at 20) (quoting Whalen v. Roe, 429 U.S. 589, 605 (1977)). The Court need not speculate about the risks posed “by a system that did not contain comparable security provisions.” Id., at 606. In light of the scientific and statutory safeguards, once respondent’s DNA was lawfully collected the STR analysis of respondent’s DNA pursuant to CODIS procedures did not amount to a significant invasion of privacy that would render the DNA identification impermissible under the Fourth Amendment. * * * In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. The judgment of the Court of Appeals of Maryland is reversed. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MARYLAND v. KING certiorari to the court of appeals of maryland No. 12–207. Argued February 26, 2013—Decided June 3, 2013 After his 2009 arrest on first- and second-degree assault charges, respondent King was processed through a Wicomico County, Maryland, facility, where booking personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act (Act). The swab was matched to an unsolved 2003 rape, and King was charged with that crime. He moved to suppress the DNA match, arguing that the Act violated the Fourth Amendment, but the Circuit Court Judge found the law constitutional. King was convicted of rape. The Maryland Court of Appeals set aside the conviction, finding unconstitutional the portions of the Act authorizing DNA collection from felony arrestees. Held: When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. . (a) DNA testing may “significantly improve both the criminal justice system and police investigative practices,” District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 55, by making it “possible to determine whether a biological tissue matches a suspect with near certainty,” id., at 62. Maryland’s Act authorizes law enforcement authorities to collect DNA samples from, as relevant here, persons charged with violent crimes, including first-degree assault. A sample may not be added to a database before an individual is arraigned, and it must be destroyed if, e.g., he is not convicted. Only identity information may be added to the database. Here, the officer collected a DNA sample using the common “buccal swab” procedure, which is quick and painless, requires no “surgical intrusio[n] beneath the skin,” Winston v. Lee, 470 U.S. 753, 760, and poses no threat to the arrestee’s “health or safety,” id., at 763. Respondent’s identification as the rapist resulted in part through the operation of the Combined DNA Index System (CODIS), which connects DNA laboratories at the local, state, and national level, and which standardizes the points of comparison, i.e., loci, used in DNA analysis. . (b) The framework for deciding the issue presented is well established. Using a buccal swab inside a person’s cheek to obtain a DNA sample is a search under the Fourth Amendment. And the fact that the intrusion is negligible is of central relevance to determining whether the search is reasonable, “the ultimate measure of the constitutionality of a governmental search,” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652. Because the need for a warrant is greatly diminished here, where the arrestee was already in valid police custody for a serious offense supported by probable cause, the search is analyzed by reference to “reasonableness, not individualized suspicion,” Samson v. California, 547 U.S. 843, 855, n. 4, and reasonableness is determined by weighing “the promotion of legitimate governmental interests” against “the degree to which [the search] intrudes upon an individual’s privacy,” Wyoming v. Houghton, 526 U.S. 295, 300. . (c) In this balance of reasonableness, great weight is given to both the significant government interest at stake in the identification of arrestees and DNA identification’s unmatched potential to serve that interest. . (1) The Act serves a well-established, legitimate government interest: the need of law enforcement officers in a safe and accurate way to process and identify persons and possessions taken into custody. “[P]robable cause provides legal justification for arresting a [suspect], and for a brief period of detention to take the administrative steps incident to arrest,” Gerstein v. Pugh, 420 U.S. 103, 113–114; and the “validity of the search of a person incident to a lawful arrest” is settled, United States v. Robinson, 414 U.S. 218, 224. Individual suspicion is not necessary. The “routine administrative procedure[s] at a police station house incident to booking and jailing the suspect” have different origins and different constitutional justifications than, say, the search of a place not incident to arrest, Illinois v. Lafayette, 462 U.S. 640, 643, which depends on the “fair probability that contraband or evidence of a crime will be found in a particular place,” Illinois v. Gates, 462 U.S. 213, 238. And when probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests. First, the government has an interest in properly identifying “who has been arrested and who is being tried.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 191. Criminal history is critical to officers who are processing a suspect for detention. They already seek identity information through routine and accepted means: comparing booking photographs to sketch artists’ depictions, showing mugshots to potential witnesses, and comparing fingerprints against electronic databases of known criminals and unsolved crimes. The only difference between DNA analysis and fingerprint databases is the unparalleled accuracy DNA provides. DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police. Second, officers must ensure that the custody of an arrestee does not create inordinate “risks for facility staff, for the existing detainee population, and for a new detainee.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___. DNA allows officers to know the type of person being detained. Third, “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials.” Bell v. Wolfish, 441 U.S. 520, 534. An arrestee may be more inclined to flee if he thinks that continued contact with the criminal justice system may expose another serious offense. Fourth, an arrestee’s past conduct is essential to assessing the danger he poses to the public, which will inform a court’s bail determination. Knowing that the defendant is wanted for a previous violent crime based on DNA identification may be especially probative in this regard. Finally, in the interests of justice, identifying an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned. . (2) DNA identification is an important advance in the techniques long used by law enforcement to serve legitimate police concerns. Police routinely have used scientific advancements as standard procedures for identifying arrestees. Fingerprinting, perhaps the most direct historical analogue to DNA technology, has, from its advent, been viewed as a natural part of “the administrative steps incident to arrest.” County of Riverside v. McLaughlin, 500 U.S. 44, 58. However, DNA identification is far superior. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, and DNA identification is markedly more accurate. It may not be as fast as fingerprinting, but rapid fingerprint analysis is itself of recent vintage, and the question of how long it takes to process identifying information goes to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search. Rapid technical advances are also reducing DNA processing times. . (d) The government interest is not outweighed by respondent’s privacy interests. . (1) By comparison to the substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is minimal. Reasonableness must be considered in the context of an individual’s legitimate privacy expectations, which necessarily diminish when he is taken into police custody. Bell, supra, at 557. Such searches thus differ from the so-called special needs searches of, e.g., otherwise law-abiding motorists at checkpoints. See Indianapolis v. Edmond, 531 U.S. 32. The reasonableness inquiry considers two other circumstances in which particularized suspicion is not categorically required: “diminished expectations of privacy [and a] minimal intrusion.” Illinois v. McArthur, 531 U.S. 326, 330. An invasive surgery may raise privacy concerns weighty enough for the search to require a warrant, notwithstanding the arrestee’s diminished privacy expectations, but a buccal swab, which involves a brief and minimal intrusion with “virtually no risk, trauma, or pain,” Schmerber v. California, 384 U.S. 757, 771, does not increase the indignity already attendant to normal incidents of arrest. . (2) The processing of respondent’s DNA sample’s CODIS loci also did not intrude on his privacy in a way that would make his DNA identification unconstitutional. Those loci came from noncoding DNA parts that do not reveal an arrestee’s genetic traits and are unlikely to reveal any private medical information. Even if they could provide such information, they are not in fact tested for that end. Finally, the Act provides statutory protections to guard against such invasions of privacy. . 425 Md. 550, 42 A.3d 549, reversed. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

The Maryland DNA Collection Act (Act) authorizes law enforcement officials to collect samples from an arrestee charged with certain serious crimes and to use a cheek swab to take the sample. Once taken, the sample may not be processed or placed in a database before the arrestee is arraigned, unless the individual consents, and the samples are destroyed if a criminal action is not resulted in a conviction, if the conviction is reversed or vacated, or if the individual is granted an unconditional pardon. The Act also limits the information added to a DNA database and how it may be used, limiting the information to the inside of the cheeks, and no purpose other than identification is permissible. Respondent, who had been arrested for menac-ing a group of people with a shotgun and charged in state court with both first- and second-degree assault, moved to suppress the match on the grounds that the Act violated the Fourth Amendment. The Maryland Court of Appeals struck down the Act as unconstitutional, holding that the swab was an unlawful seizure because respondent's expectation of privacy was greater than the State's purported interest in using his DNA to identify him. Held: The Fourth Amendment does not prohibit the collection and analysis of a person arrested, but not yet convicted, on felony charges. . (a) Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. Urgent government interests are not a license for indiscriminate police behavior. P.. (b) The identification of arrestees is a legitimate search that can be considered part of a routine booking procedure. The government interest must outweigh the degree to which the search in-vades an individual's legitimate expectations of privacy. A suspect's criminal history is a critical part of his identity that officers should know when processing him for detention. Moreover, a suspect has a criminal history that goes only to the efficacy of the search for its purpose of prompt identification, not its constitutionality. Even so, the delay in processing fingerprints is being reduced to a substantial degree by rapid technical advances. In light of the scientific and statutory safeguards, once respondent was lawfully collected the analysis of respondent's DNA pursuant to CODIS procedures did not amount to a significant invasion of privacy that would render the DNA identification impermissible. Upon these considerations, once the DNA was lawfully collected, the identification of the arrestees was a reasonable search that could be considered as part of an initial booking procedure, and thus the Court must give great weight both to the significant government interest at stake in the identification and to the unmatched potential of DNA identification to serve that interest.. 425 Md. 550, 42 A.3d 549, reversed. For context, consider the following: When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing the fingerprint swab of the arrestedee is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth. For background, see, e.g., Treasury Employees v. Von Raab, 489 U.S. 656, 667. Here, the processing of respondent, aDNA sam-ple, did not intrude on respondent's privacy in a way that would make his DNA identification unconstitutional. First, the facial features of the suspect are not offended by the minor intrusion of a brief swab, and nothing suggests that a buccal swab poses any physical danger whatsoever. Second, the fact that the suspect absconds from custody presents a risk to law enforcement officers, other detainees, victims of previous crimes, witnesses, and society at large. Finally, the interest in justice, since law enforcement agencies routinely use scientific advancements in their standard procedures for identification, has led to significant state interests in identifying respondent not only so that the proper name can be attached to his charges, but also so that he can be released pending trial. Third, the reasonableness of any search must be balanced in the context of the person's legitimate expectation that the search is acceptable solely because a person is in custody. Fourth Amendment concerns are further different when the search involves no discretion that could properly be limited by theinterpo[lation of a neutral magistrate between the citizen and the law enforcement officer. And when the police stop a motorist at a checkpoint or test a political candidate for illegal narcotics, or when the suspect is arrested on probable cause for a dangerous offense that may require detention before trial, the police bear a responsibility for ensuring that the custody of an arrestedee does not create inordinate checkpoints for facility staff, for the existing detainee population, and for a new detainee. By contrast, in contrast to the approved standard procedures incident to any arrest detailed above, a bucci swab involves an even more brief and still minimal intrusion. Although a slight intrusion of an arrestingee's person

2012_12-17

https://www.oyez.org/cases/2012/12-17

. In this case, we must decide whether the Virginia Freedom of Information Act, Va. Code Ann. §2.2–3700 et seq., violates either the Privileges and Immunities Clause of Article IV of the Constitution or the dormant Commerce Clause. The Virginia Freedom of Information Act (FOIA), provides that “all public records shall be open to inspection and copying by any citizens of the Commonwealth,” but it grants no such right to non-Virginians. §2.2–3704(A) (Lexis 2011). Petitioners, who are citizens of other States, unsuccessfully sought information under the Act and then brought this constitutional challenge. We hold, however, that petitioners’ constitutional rights were not violated. By means other than the state FOIA, Virginia made available to petitioners most of the information that they sought, and the Commonwealth’s refusal to furnish the additional information did not abridge any constitutionally protected privilege or immunity. Nor did Virginia violate the dor- mant Commerce Clause. The state Freedom of Informa- tion Act does not regulate commerce in any meaningful sense, but instead provides a service that is related to state citizenship. For these reasons, we affirm the decision of the Court of Appeals rejecting petitioners’ constitutional claims. I Petitioners Mark J. McBurney and Roger W. Hurlbert are citizens of Rhode Island and California respectively. McBurney and Hurlbert each requested documents under the Virginia FOIA, but their requests were denied because of their citizenship. McBurney is a former resident of Virginia whose ex-wife is a Virginia citizen. After his ex-wife defaulted on her child support obligations, McBurney asked the Commonwealth’s Division of Child Support Enforcement to file a petition for child support on his behalf. The agency complied, but only after a 9-month delay. McBurney attributes that delay to agency error and says that it cost him nine months of child support. To ascertain the reason for the agency’s delay, McBurney filed a Virginia FOIA request seeking “all emails, notes, files, memos, reports, letters, policies, [and] opinions” pertaining to his family, along with all documents “regarding [his] application for child support” and all documents pertaining to the handling of child support claims like his. App. in No. 11–1099 (CA4), p. 39A. The agency denied McBurney’s request on the ground that he was not a Virginia citizen. McBurney later requested the same documents under Virginia’s Gov- ernment Data Collection and Dissemination Practices Act, Va. Code Ann. §2.2–3800 et seq., and through that re- quest he received most of the information he had sought that pertained specifically to his own case. He did not, however, receive any general policy information about how the agency handled claims like his. Hurlbert is the sole proprietor of Sage Information Services, a business that requests real estate tax records on clients’ behalf from state and local governments across the United States. In 2008, Hurlbert was hired by a land/title company to obtain real estate tax records for properties in Henrico County, Virginia. He filed a Virginia FOIA request for the documents with the Henrico County Real Estate Assessor’s Office, but his request was denied because he was not a Virginia citizen. Petitioners filed suit under 42 U. S. C. §1983, seeking declaratory and injunctive relief for violations of the Privileges and Immunities Clause and, in Hurlbert’s case, the dormant Commerce Clause. The District Court granted Virginia’s motion for summary judgment, McBurney v. Cuccinelli, 780 F. Supp. 2d 439 (ED Va. 2011), and the Court of Appeals affirmed, 667 F.3d 454 (CA4 2012). Like Virginia, several other States have enacted freedom of information laws that are available only to their citizens. See, e.g., Ala. Code §36–12–40 (2012 Cum. Supp.); Ark. Code Ann. §25–19–105 (2011 Supp.); Del. Code Ann., Tit. 29, §10003 (2012 Supp.); Mo. Rev. Stat. §109.180 (2012); N. H. Rev. Stat. Ann. §91–A:4 (West 2012); N. J. Stat. Ann. §47:1A–1 (West 2003); Tenn. Code Ann. §10–7–503 (2012). In Lee v. Minner, 458 F.3d 194 (2006), the Third Circuit held that this feature of Delaware’s FOIA violated the Privileges and Immunities Clause. We granted certiorari to resolve this conflict. 568 U. S. ___ (2012). II Under the Privileges and Immunities Clause, “[t]he Citizens of each State [are] entitled to all Privileges and Immunities of Citizens in the several States.” U. S. Const., Art. IV, §2, cl. 1. We have said that “[t]he object of the Privileges and Immunities Clause is to ‘strongly . . . constitute the citizens of the United States [as] one people,’ by ‘plac[ing] the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.’ ” Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287, 296 (1998) (quoting Paul v. Virginia, 8 Wall. 168, 180 (1869)). This does not mean, we have cautioned, that “state citizenship or residency may never be used by a State to distinguish among persons.” Baldwin v. Fish and Game Comm’n of Mont., 436 U.S. 371, 383 (1978). “Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do.” Ibid. Rather, we have long held that the Privileges and Immunities Clause protects only those privileges and immunities that are “fundamental.” See, e.g., id., at 382, 388. Petitioners allege that Virginia’s citizens-only FOIA provision violates four different “fundamental” privileges or immunities: the opportunity to pursue a common calling, the ability to own and transfer property, access to the Virginia courts, and access to public information. The first three items on that list, however, are not abridged by the Virginia FOIA, and the fourth—framed broadly—is not protected by the Privileges and Immunities Clause. A Hurlbert argues that Virginia’s citizens-only FOIA pro- vision abridges his ability to earn a living in his chosen profession, namely, obtaining property records from state and local governments on behalf of clients. He is correct that the Privileges and Immunities Clause protects the right of citizens to “ply their trade, practice their occupation, or pursue a common calling.” Hicklin v. Orbeck, 437 U.S. 518, 524 (1978); Supreme Court of N. H. v. Piper, 470 U.S. 274, 280 (1985) (“ ‘[O]ne of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State’ ”). But the Virginia FOIA does not abridge Hulbert’s ability to engage in a common calling in the sense prohibited by the Privileges and Immunities Clause. Rather, the Court has struck laws down as violating the privilege of pursuing a common calling only when those laws were enacted for the protectionist purpose of burdening out-of-state citizens. See, e.g., Hicklin, supra, (striking down as a violation of noncitizens’ privileges and immunities an “Alaska Hire” statute containing a resident hiring preference for all employment related to the development of the State’s oil and gas resources); Toomer v. Witsell, 334 U.S. 385, 395, 397 (1948) (striking down a South Carolina statute imposing a $2,500 license fee on out-of-state shrimping boats and only a $25 fee on in-state shrimping boats where petitioners alleged that the “purpose and effect of this statute . . . [was] not to conserve shrimp, but to exclude non-residents and thereby create a commercial monopoly for South Carolina residents,” and the “record cas[t] some doubt on” the State’s counterassertion that the statute’s “obvious purpose was to conserve its shrimp supply”); United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden, 465 U.S. 208 (1984) (New Jersey municipal ordinance requiring that at least 40% of employees of contractors and subcontractors working on city construction projects be city residents facially burdened out-of-state citizens’ ability to pursue a common calling). In each case, the clear aim of the statute at issue was to advantage in-state workers and commercial interests at the expense of their out-of-state counterparts. Virginia’s FOIA differs sharply from those statutes. By its own terms, Virginia’s FOIA was enacted to “ensur[e] the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.” Va. Code Ann. §2.2–3700(B) (Lexis 2011). Hurlbert does not allege—and has offered no proof—that the challenged provision of the Virginia FOIA was enacted in order to provide a competitive economic advantage for Virginia citizens. Cf. Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 67 (2003) (piercing a professedly nondiscriminatory statute to find economic protectionism). Rather, it seems clear that the distinction that the statute makes between citizens and noncitizens has a distinctly nonprotectionist aim. The state FOIA essentially represents a mechanism by which those who ultimately hold sovereign power (i.e., the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power. See Va. Const., Art. I, §2; Va. Code Ann. §2.2–3700(B). In addition, the provision limiting the use of the state FOIA to Virginia citizens recognizes that Virginia taxpayers foot the bill for the fixed costs underlying recordkeeping in the Commonwealth. Tr. of Oral Arg. 53–54. The challenged provision of the state FOIA does not violate the Privileges and Immunities Clause simply because it has the incidental effect of preventing citizens of other States from making a profit by trading on in- formation contained in state records. While the Clause forbids a State from intentionally giving its own citizens a competitive advantage in business or employment, the Clause does not require that a State tailor its every action to avoid any incidental effect on out-of-state tradesmen. B Hurlbert next alleges that the challenged provision of the Virginia FOIA abridges the right to own and transfer property in the Commonwealth. Like the right to pursue a common calling, the right to “take, hold and dispose of property, either real or personal,” has long been seen as one of the privileges of citizenship. See Corfield v. Coryell, 6 F. Cas. 546, 552 (No. 3, 230) (CCED Pa. 1825); see also Paul, supra, at 180 (listing “the acquisition and enjoyment of property” among the privileges of citizenship). Thus, if a State prevented out-of-state citizens from accessing records—like title documents and mortgage records—that are necessary to the transfer of property, the State might well run afoul of the Privileges and Immunities Clause. Cf. State v. Grimes, 29 Nev. 50, 85, 84 P. 1061, 1073 (1906) (“Caveat emptor being the rule with us in the absence of a special agreement, it is just and essential to the protection of persons intending to purchase or take incumbrances that they be allowed the right of inspection”); Jackson ex dem. Center v. Campbell, 19 Johns. 281, 283 (N. Y. 1822) (the “plain intention” of the State’s property records system was “to give notice, through the medium of the county records, to persons about to purchase”). Virginia, however, does not prevent citizens of other States from obtaining such documents. Under Virginia law, “any records and papers of every circuit court that are maintained by the clerk of the circuit court shall be open to inspection by any person and the clerk shall, when requested, furnish copies thereof.” Va. Code Ann. §17.1–208 (Lexis 2010). Such records and papers include records of property transfers, like title documents, §55–106 (Lexis 2012); notices of federal tax liens and other federal liens against property, §55–142.1; notices of state tax liens against property, §58.1–314 (Lexis 2009) (state taxes generally), §58.1–908 (estate tax liens), §58.1–1805 (state taxes generally), §58.1–2021(A) (liens filed by agencies other than the Tax Commission); and notice of mortgages and other encumbrances, §8.01–241 (Lexis Supp. 2012). A similar flaw undermines Hurlbert’s claim that Vir- ginia violates the Privileges and Immunities Clause by pre- venting citizens of other States from accessing real estate tax assessment records. It is true that those records, while available to Virginia citizens under the state FOIA, are not required by statute to be made available to noncitizens. See Associated Tax Service, Inc. v. Fitzpatrick, 236 Va. 181, 183, 187, 372 S.E.2d 625, 627, 629 (1988).[1] But in fact Virginia and its subdivisions generally make even these less essential records readily available to all. These records are considered nonconfidential under Virginia law and, accordingly, they may be posted online. §58.1–3122.2 (Lexis 2009). Henrico County, from which Hurlbert sought real estate tax assessments, follows this practice,[2] as does almost every other county in the Commonwealth. Requiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden on noncitizens’ ability to own or transfer property in Virginia. C McBurney alleges that Virginia’s citizens-only FOIA provision impermissibly burdens his “access to public proceedings.” Brief for Petitioners 42. McBurney is correct that the Privileges and Immunities Clause “secures citizens of one State the right to resort to the courts of another, equally with the citizens of the latter State.” Missouri Pacific R. Co. v. Clarendon Boat Oar Co., 257 U.S. 533, 535 (1922). But petitioners do not suggest that the Virginia FOIA slams the courthouse door on noncitizens; rather, the most they claim is that the law creates “[a]n information asymmetry between adversaries based solely on state citizenship.” Brief for Petitioners 42. The Privileges and Immunities Clause does not require States to erase any distinction between citizens and non-citizens that might conceivably give state citizens some detectable litigation advantage. Rather, the Court has made clear that “the constitutional requirement is sat- isfied if the non-resident is given access to the courts of the State upon terms which in themselves are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically and precisely the same in extent as those accorded to resident citizens.” Canadian Northern R. Co. v. Eggen, 252 U.S. 553, 562 (1920). The challenged provision of the Virginia FOIA clearly does not deprive noncitizens of “reasonable and adequate” access to the Commonwealth’s courts. Virginia’s rules of civil procedure provide for both discovery, Va. Sup. Ct. Rule 4:1 (2012), and subpoenas duces tecum, Rule 4:9. There is no reason to think that those mechanisms are insufficient to provide noncitizens with any relevant, nonprivileged documents needed in litigation. Moreover, Virginia law gives citizens and noncitizens alike access to judicial records. Va. Code Ann. §17.1–208; see also Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 258, 368 S.E.2d 253, 256 (1988). And if Virginia has in its possession information about any person, whether a citizen of the Commonwealth or of another State, that person has the right under the Government Data Collection and Dissemination Practices Act to inspect that information. §2.2–3806(A)(3) (Lexis 2011). McBurney’s own case is illustrative. When his FOIA request was denied, McBurney was told that he should request the materials he sought pursuant to the Government Data Collection and Dissemination Practices Act. Upon placing a request under that Act, he ultimately received much of what he sought. Accordingly, Virginia’s citizens-only FOIA provision does not impermissibly burden noncitizens’ ability to access the Commonwealth’s courts. D Finally, we reject petitioners’ sweeping claim that the challenged provision of the Virginia FOIA violates the Privileges and Immunities Clause because it denies them the right to access public information on equal terms with citizens of the Commonwealth. We cannot agree that the Privileges and Immunities Clause covers this broad right. This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws. See Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978) (plurality opinion) (“ ‘The Constitution itself is [not] a Freedom of Information Act’ ”); see also Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 40 (1999) (the Government could decide “not to give out [this] information at all”); Sorrell v. IMS Health Inc., 564 U. S. ___, ___ (2011) (Breyer, J., dissenting) (slip op., at 8) (“[T]his Court has never found that the First Amendment prohibits the government from restricting the use of information gathered pursuant to a regulatory mandate”). It certainly cannot be said that such a broad right has “at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.” Corfield, 6 F. Cas., at 551. No such right was recognized at common law. See H. Cross, The People’s Right to Know 25 (1953) (“[T]he courts declared the primary rule that there was no general common law right in all persons (as citizens, taxpayers, electors or merely as persons) to inspect public records or documents”). Most founding-era English cases provided that only those persons who had a personal interest in non-judicial records were permitted to access them. See, e.g., King v. Shelley, 3 T. R. 141, 142, 100 Eng. Rep. 498, 499 (K. B. 1789) (Buller, J.) (“[O]ne man has no right to look into another’s title deeds and records, when he . . . has no interest in the deeds or rolls himself”); King v. Justices of Staffordshire, 6 Ad. & E. 84, 101, 112 Eng. Rep. 33, 39 (K. B. 1837) (“The utmost . . . that can be said on the ground of interest, is that the applicants have a rational curiosity to gratify by this inspection, or that they may thereby ascertain facts useful to them in advancing some ulterior measures in contemplation as to regulating county expenditure; but this is merely an interest in obtaining information on the general subject, and would furnish an equally good reason for permitting inspection of the records of any other county: there is not that direct and tangible interest, which is necessary to bring them within the rule on which the Court acts in granting inspection of public documents”). Nineteenth-century American cases, while less uniform, certainly do not support the proposition that a broad-based right to access public information was widely recognized in the early Republic. See, e.g., Cormack v. Wolcott, 37 Kan. 391, 394, 15 P. 245, 246 (1887) (denying mandamus to plaintiff seeking to compile abstracts of title records; “At common law, parties had no vested rights in the examination of a record of title, or other public records, save by some interest in the land or subject of record”); Brewer v. Watson, 71 Ala. 299, 305 (1882) (“The individual demanding access to, and inspection of public writings must not only have an interest in the matters to which they relate, a direct, tangible interest, but the inspection must be sought for some specific and legitimate purpose. The gratification of mere curiosity, or motives merely speculative will not entitle him to demand an examination of such writings”); Nadel, What are “Records” of Agency Which Must Be Made Available Under State Freedom of Information Act, 27 A. L. R. 4th 680, 687, §2[b] (1984) (“[A]t common law, a person requesting inspection of a public record was required to show an interest therein which would enable him to maintain or defend an action for which the document or record sought could furnish evidence or necessary information”). Nor is such a sweeping right “basic to the maintenance or well-being of the Union.” Baldwin, 436 U. S., at 388. FOIA laws are of relatively recent vintage. The federal FOIA was enacted in 1966, §1, 80Stat. 383, and Virginia’s counterpart was adopted two years later, 1968 Va. Acts ch. 479, p. 690. There is no contention that the Nation’s unity foundered in their absence, or that it is suffering now because of the citizens-only FOIA provisions that several States have enacted. III In addition to his Privileges and Immunities Clause claim, Hurlbert contends that Virginia’s citizens-only FOIA provision violates the dormant Commerce Clause. The Commerce Clause empowers Congress “[t]o regulate Commerce . . . among the several States.” Art. I, §8, cl. 3. The Commerce Clause does not expressly impose any constraints on “the several States,” and several Members of the Court have expressed the view that it does not do so. See General Motors Corp. v. Tracy, 519 U.S. 278, 312 (1997) (Scalia, J., concurring) (“[T]he so-called ‘negative’ Commerce Clause is an unjustified judicial intervention, not to be expanded beyond its existing domain”); United Haulers Assn. Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330, 349 (2007) (Thomas, J., concurring in judgment) (“The negative Commerce Clause has no basis in the Constitution and has proved unwork- able in practice”). Nonetheless, the Court has long inferred that the Commerce Clause itself imposes certain implicit limitations on state power. See, e.g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299, 318–319 (1852); cf. Gib- bons v. Ogden, 9 Wheat. 1, 209 (1824) (Marshall, C. J.) (dictum). Our dormant Commerce Clause jurisprudence “significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce.” Maine v. Taylor, 477 U.S. 131, 151 (1986). It is driven by a concern about “economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273–274 (1988); see also Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978) (“The crucial inquiry . . . must be directed to determining whether [the challenged statute] is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental”). Virginia’s FOIA law neither “regulates” nor “burdens” interstate commerce; rather, it merely provides a service to local citizens that would not otherwise be available at all. The “common thread” among those cases in which the Court has found a dormant Commerce Clause violation is that “the State interfered with the natural functioning of the interstate market either through prohibition or through burdensome regulation.” Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 806 (1976). Here, by contrast, Virginia neither prohibits access to an interstate market nor imposes burdensome regulation on that market. Rather, it merely creates and provides to its own citizens copies—which would not otherwise exist—of state records. As discussed above, the express purpose of Virginia’s FOIA law is to “ensur[e] the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.” Va. Code Ann. §2.2–3700(B). This case is thus most properly brought under the Privileges and Immunities Clause: It quite literally poses the question whether Virginia can deny out-of-state citizens a benefit that it has conferred on its own citizens. Cf. Missouri Pacific R. Co., 257 U. S., at 535 (analyzing whether the privilege of access to a State’s courts must be made available to out-of-state citizens equally with the citizens of the relevant State). Because it does not pose the question of the constitutionality of a state law that interferes with an interstate market through prohibition or burdensome regulations, this case is not governed by the dormant Commerce Clause. Even shoehorned into our dormant Commerce Clause framework, however, Hurlbert’s claim would fail. Insofar as there is a “market” for public documents in Virginia, it is a market for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer. We have held that a State does not violate the dormant Commerce Clause when, having created a market through a state program, it “limits benefits generated by [that] state program to those who fund the state treasury and whom the State was created to serve.” Reeves, Inc. v. Stake, 447 U.S. 429, 442 (1980). “Such policies, while perhaps ‘protectionist’ in a loose sense, reflect the essential and patently unobjectionable purpose of state government—to serve the citizens of the State.” Ibid.; cf. Department of Revenue of Ky. v. Davis, 553 U.S. 328, 341 (2008) (“[A] government function is not susceptible to standard dormant Commerce Clause scrutiny owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause abhors”). For these reasons, Virginia’s citizens-only FOIA provision does not violate the dormant Commerce Clause. * * * Because Virginia’s citizens-only FOIA provision neither abridges any of petitioners’ fundamental privileges and immunities nor impermissibly regulates commerce, petitioners’ constitutional claims fail. The judgment below is affirmed. It is so ordered. Notes 1 At oral argument, the Solicitor General of Virginia contended that, as a matter of Virginia law, Hurlbert “is entitled to the tax assessment data in the clerk’s office.” Tr. of Oral Arg. 38. Neither at oral argument nor in its briefs did Virginia cite any Virginia statute providing that real estate tax assessment records be filed in the clerk’s office. Virginia Code Ann. §58.1–3300 (Lexis 2009), which directs that “reassessment” records be filed with the clerk, may be the statute to which counsel referred, but without an official construction of the statute by Virginia’s Supreme Court—and, in light of the fact that petitioners have not been afforded an opportunity to rebut its importance—we do not rely upon it here. 2 See http://www.co.henrico.va.us/finance/disclaimer.html (as visited April 26, 2013, and available in Clerk of Court’s case file).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus McBURNEY et al. v. YOUNG, DEPUTY COMMISSIONER AND DIRECTOR, VIRGINIA DIVISION OF CHILD SUPPORT ENFORCEMENT, et al. certiorari to the united states court of appeals for the fourth circuit No. 12–17. Argued February 20, 2013—Decided April 29, 2013 Virginia’s Freedom of Information Act (FOIA) grants Virginia citizens access to all public records, but grants no such right to non-Virginians. Petitioners McBurney and Hurlbert, citizens of States other than Virginia, filed records requests under the Act. After each petitioner’s request was denied, they filed a 42 U. S. C. §1983 suit seeking declaratory and injunctive relief for violations of the Privileges and Immunities Clause and, in Hurlbert’s case, the dormant Commerce Clause. The District Court granted Virginia’s motion for summary judgment, and the Fourth Circuit affirmed. Held: 1. Virginia’s FOIA does not violate the Privileges and Immunities Clause, which protects only those privileges and immunities that are “fundamental.” See Baldwin v. Fish and Game Comm’n of Mont., 436 U.S. 371, 382, 388. . (a) Hurlbert alleges that Virginia’s FOIA abridges his fundamental right to earn a living in his chosen profession—obtaining property records on behalf of his clients. While the Privileges and Immunities Clause protects the right of citizens to “ply their trade, practice their occupation, or pursue a common calling,” Hicklin v. Orbeck, 437 U.S. 518, 524, the Court has struck down laws as violating this privilege only when they were enacted for the protectionist purpose of burdening out-of-state citizens. See, e.g., Toomer v. Witsell, 334 U.S. 385, 395, 397. The Virginia FOIA’s citizen/noncitizen distinction has a nonprotectionist aim. Virginia’s FOIA exists to provide a mechanism for Virginia citizens to obtain an accounting from their public officials; noncitizens have no comparable need. Moreover, the distinction between citizens and noncitizens recognizes that citizens alone foot the bill for the fixed costs underlying recordkeeping in the Commonwealth. Any effect the Act has of preventing citizens of other States from making a profit by trading on information contained in state records is incidental. . (b) Hurlbert also alleges that Virginia’s FOIA abridges the right to own and transfer property in the Commonwealth. The right to take, hold, and dispose of property has long been seen as one of the privileges of citizenship. See, e.g., Paul v. Virginia, 8 Wall. 168, 180. However, Virginia law does not prevent noncitizens from obtaining documents necessary to the transfer of property. Records—like title and mortgage documents—maintained by the clerk of each circuit court are available to inspection by any person. Real estate tax assessment records are considered nonconfidential and are often posted online, a practice followed by the county from which Hurlbert sought records. Requiring a noncitizen to obtain records through the clerk’s office or on the Internet, instead of through a burdensome FOIA process, cannot be said to impose a significant burden on the ability to own or transfer property in Virginia. . (c) McBurney alleges that Virginia’s FOIA impermissibly burdens his access to public proceedings. The Privileges and Immunities Clause “secures citizens of one state the right to resort to the courts of another, equally with the citizens of the latter state,” Missouri Pacific R. Co. v. Clarendon Boat Oar Co., 257 U.S. 533, 535, but that “requirement is satisfied if the nonresident is given access . . . upon terms which . . . are reasonable and adequate for the enforcing of any rights he may have, even though they may not be . . . the same in extent as those accorded to resident citizens,” Canadian Northern R. Co. v. Eggen, 252 U.S. 553, 562. Virginia’s FOIA clearly does not deprive noncitizens of “reasonable and adequate” access to Commonwealth courts. Virginia’s court rules provide noncitizens access to nonpriviledged documents needed in litigation, and Virginia law gives citizens and noncitizens alike access to judicial records and to records pertaining directly to them. For example, McBurney utilized Virginia’s Government Data Collection and Dissemination Practices Act to receive much of the information he had sought in his FOIA request. . (d) Petitioners’ sweeping claim that the Virginia FOIA violates the Privileges and Immunities Clause because it denies them the right to access public information on equal terms with Commonwealth citizens is rejected because the right to access public information is not a “fundamental” privilege or immunity of citizenship. The Court has repeatedly stated that the Constitution does not guarantee the existence of FOIA laws. See, e.g., Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 40. Moreover, no such right was recognized at common law or in the early Republic. Nor is such a sweeping right “basic to the maintenance or well-being of the Union.” Baldwin, supra, at 388. . 2. Virginia’s FOIA does not violate the dormant Commerce Clause. The “common thread” among this Court’s dormant Commerce Clause cases is that “the State interfered with the natural functioning of the interstate market either through prohibition or thorough burdensome regulation.” Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 806. Virginia’s FOIA, by contrast, neither prohibits access to an interstate market nor imposes burdensome regulation on that market. Accordingly, this is not properly viewed as a dormant Commerce Clause case. Even shoehorned into the Court’s dormant Commerce Clause framework, however, Hurlbert’s claim would fail. Insofar as there is a “market” for public documents in Virginia, it is a market for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer. A State does not violate the dormant Commerce Clause when, having created a market through a state program, it “limits benefits generated by [that] state program to those who fund the state treasury and whom the State was created to serve.” Reeves, Inc. v. Stake, 447 U.S. 429, 442. . 667 F.3d 454, affirmed. Alito, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.

Petitioners, citizens of Virginia whose ex-wife is a Virginia citizen, each requested documents under the Virginia Freedom of Information Act (FOIA), which provides that all public records shall be open to inspection and copying by citizens of the Commonwealth, but grants no such right to non-Virginians. Petitioners filed suit under 42 U.S. C. §1983, seeking declaratory and injunctive relief for violations of the Privileges and Immunities Clause of Article IV of the Constitution and, in petitioner Hurlbert's case, the dormant Commerce Clause. The District Court granted Virginia a motion for summary judgment, and the Court of Appeals affirmed, rejecting petitioners' constitutional claims. Held: Petitioners were not deprived of their rights under the FOIA simply because it has the incidental effect of preventing citizens of other States from making a profit by trading on in- formation contained in state records. While the Clause forbids a State from intentionally giving its own citizens a competitive advantage in business or employment, the Clause does not require that a State tailor its every action to avoid any incidental effect on out-of-state tradesmen. Virginia's citizens-only FOIA provision does not impermissibly burden noncitizens' ability to access the Commonwealth's courts. . 67 F.3d 454 (CA4 2012), affirmed. Hurlbert claims that the Virginia FOIA does not violate, or abridge, the privilege of pursuing a common calling because it does not deprive noncitizens of reasonable and adequate access to the Commonwealth s courts.. (a) Petitioners do not allege that the FOIA was enacted in order to provide a competitive economic advantage for Virginia citizens. Rather, the statute essentially represents a mechanism by which those who ultimately hold sovereign power may obtain an accounting from the public officials to whom they delegate the exercise of that power. The fact that Virginia has in its possession information about any person, whether a Commonwealth citizen or of another State, that person has the right under the Government Data Collection and Dissemination Practices Act to inspect that information. Although Virginia neither prohibits access to an interstate market nor imposes burdensome regulation on that market, rather, it merely creates and provides to its citizens copies of state records that would not otherwise be available at all. Moreover, Virginia law gives citizens and noncitizens alike access to judicial records. Pp. 447 U. S. 274, 280. (b) Nor does the FOIA violate, nor abridges, the right to own and transfer property in the Commonwealth. Virginia, by virtue of its rules of civil procedure, provides for discovery and for subpoenas duces tecum, and since there is no reason to think that those mechanisms are insufficient to provide noncitizens with any relevant, nonprivileged documents needed in litigation, this case is most properly brought under, and is not governed by, the dormant Commerce Clause, which does not expressly impose any constraints on the States or the Federal Government. Nor is such a sweeping rightbasic to the maintenance or well-being of the Union. And the FOIA laws are of relatively recent vintage, and Virginia has created a market for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer. Therefore, Virginia's citizen-only provision does not abridge any legitimate economic or business objectives owing to dormant Commerce Clause. P.. (c) The privilege of access to public records is not susceptible to constitutional scrutiny owing to the fact that petitioners have not been afforded an opportunity to rebut their importance in this Court. Oralisks and immunities are not inapplicable to the FOIA. Oral immunities do not abridges the FOIA function of regulating the data in question, since neither petitioners nor the clerk of the Virginia Clerk of Court is entitled to rely on the oral assessment provision of the FOIA as a matter of constitutional law. Since petitioners did not cite any Virginia statute providing for real estate tax assessment records filed in the county clerk’s office, the court did not rely upon its importance here. Rather, it relied on the FOIA provision of Virginia Code Ann. §58.1-3700 et seq., which directs that such records be filed with the clerk, but without an official construction of the statute by Virginia, and which limits the FOIA to Virginia citizens, since the State Supreme Court has made no such construction. See, e.g., Cl. of Oral Arg. 53. Furthermore, the provision limiting the FOIA use of Virginia citizens to noncitizens recognizes that Virginia taxpayers foot the bill for the fixed costs underlying recordkeeping. Thus, petitioners are not entitled to the constitutional protection of oral data, since they did not allege or suggest that Virginia FOIA slams the courthouse door on noncitizens; rather, the most they claim is that the law creates information asymmetry between adversaries based solely on state citizenship. Because it poses the question of the constitutionality of a state law that interferes with

2012_12-126

https://www.oyez.org/cases/2012/12-126

. This case concerns the “actual innocence” gateway to federal habeas review applied in Schlup v. Delo, 513 U.S. 298 (1995), and further explained in House v. Bell, 547 U.S. 518 (2006). In those cases, a convincing showing of actual innocence enabled habeas petitioners to overcome a procedural bar to consideration of the merits of their constitutional claims. Here, the question arises in the context of 28 U. S. C. §2244(d)(1), the statute of limitations on federal habeas petitions prescribed in the Antiterrorism and Effective Death Penalty Act of 1996. Specifically, if the petitioner does not file her federal habeas peti- tion, at the latest, within one year of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” §2244(d)(1)(D), can the time bar be overcome by a convincing showing that she committed no crime? We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U. S., at 329; see House, 547 U. S., at 538 (emphasizing that the Schlup standard is “demanding” and seldom met). And in making an assessment of the kind Schlup envisioned, “the timing of the [petition]” is a factor bearing on the “reliability of th[e] evidence” purporting to show actual innocence. Schlup, 513 U. S., at 332. In the instant case, the Sixth Circuit acknowledged that habeas petitioner Perkins (respondent here) had filed his petition after the statute of limitations ran out, and had “failed to diligently pursue his rights.” Order in No. 09–1875, (CA6, Feb. 24, 2010), p. 2 (Certificate of Appealability). Nevertheless, the Court of Appeals reversed the decision of the District Court denying Perkins’ petition, and held that Perkins’ actual-innocence claim allowed him to pursue his habeas petition as if it had been filed on time. 670 F.3d 665, 670 (2012). The appeals court ap-parently considered a petitioner’s delay irrelevant to ap-praisal of an actual-innocence claim. See ibid. We vacate the Court of Appeals’ judgment and remand the case. Our opinion clarifies that a federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been re- liably shown. See Brief for Respondent 45 (habeas court “could . . . hold the unjustified delay against the petitioner when making credibility findings as to whether the [actual-innocence] exception has been met”). I A On March 4, 1993, respondent Floyd Perkins attended a party in Flint, Michigan, in the company of his friend, Rodney Henderson, and an acquaintance, Damarr Jones. The three men left the party together. Henderson was later discovered on a wooded trail, murdered by stab wounds to his head. Perkins was charged with the murder of Henderson. At trial, Jones was the key witness for the prosecution. He testified that Perkins alone committed the murder while Jones looked on. App. 55. Chauncey Vaughn, a friend of Perkins and Henderson, testified that, prior to the murder, Perkins had told him he would kill Henderson, id., at 39, and that Perkins later called Vaughn, confessing to his commission of the crime. Id., at 36–38. A third witness, Torriano Player, also a friend of both Perkins and Henderson, testified that Perkins told him, had he known how Player felt about Henderson, he would not have killed Henderson. Id., at 74. Perkins, testifying in his own defense, offered a different account of the episode. He testified that he left Hender-son and Jones to purchase cigarettes at a convenience store. When he exited the store, Perkins related, Jones and Henderson were gone. Id., at 84. Perkins said that he then visited his girlfriend. Id., at 87. About an hour later, Perkins recalled, he saw Jones standing under a streetlight with blood on his pants, shoes, and plaid coat. Id., at 90. The jury convicted Perkins of first-degree murder. He was sentenced to life in prison without the possibility of parole on October 27, 1993. The Michigan Court of Appeals affirmed Perkins’ conviction and sentence, and the Michigan Supreme Court denied Perkins leave to appeal on January 31, 1997. Perkins’ conviction became final on May 5, 1997. B Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110Stat. 1214, a state prisoner ordinarily has one year to file a federal petition for habeas corpus, starting from “the date on which the judgment became final by the conclusion of direct review or the ex-piration of the time for seeking such review.” 28 U. S. C. §2244(d)(1)(A). If the petition alleges newly discovered evidence, however, the filing deadline is one year from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” §2244(d)(1)(D). Perkins filed his federal habeas corpus petition on June 13, 2008, more than 11 years after his conviction became final. He alleged, inter alia, ineffective assistance on the part of his trial attorney, depriving him of his Sixth Amendment right to competent counsel. To overcome AEDPA’s time limitations, Perkins asserted newly discovered evidence of actual innocence. He relied on three affidavits, each pointing to Jones, not Perkins, as Henderson’s murderer. The first affidavit, dated January 30, 1997, was submitted by Perkins’ sister, Ronda Hudson. Hudson stated that she had heard from a third party, Louis Ford, that Jones bragged about stabbing Henderson and had taken his clothes to the cleaners after the murder. App. to Pet. for Cert. 54a–55a. The second affidavit, dated March 16, 1999, was subscribed to by Demond Louis, Chauncey Vaughn’s younger brother. Louis stated that, on the night of the murder, Jones confessed to him that he had just killed Henderson. Louis also described the clothes Jones wore that night, bloodstained orange shoes and orange pants, and a colorful shirt. Id., at 50a–53a. The next day, Louis added, he accompanied Jones, first to a dumpster where Jones disposed of the bloodstained shoes, and then to the cleaners. Finally, Perkins presented the July 16, 2002 affidavit of Linda Fleming, an employee at Pro-Clean Cleaners in 1993. She stated that, on or about March 4, 1993, a man matching Jones’s description entered the shop and asked her whether bloodstains could be removed from the pants and a shirt he brought in. The pants were orange, she recalled, and heavily stained with blood, as was the multicolored shirt left for cleaning along with the pants. Id., at 48a–49a. The District Court found the affidavits insufficient to entitle Perkins to habeas relief. Characterizing the affidavits as newly discovered evidence was “dubious,” the District Court observed, in light of what Perkins knew about the underlying facts at the time of trial. Id., at 29a. But even assuming qualification of the affidavits as evidence newly discovered, the District Court next explained, “[Perkins’] petition [was] untimely under §2244(d)(1)(D).” Ibid. “[If] the statute of limitations began to run as of the date of the latest of th[e] affidavits, July 16, 2002,” the District Court noted, then “absent tolling, [Perkins] had until July 16, 2003 in which to file his habeas petition.” Ibid. Perkins, however, did not file until nearly five years later, on June 13, 2008. Under Sixth Circuit precedent, the District Court stated, “a habeas petitioner who demonstrates a credible claim of actual innocence based on new evidence may, in ex-ceptional circumstances, be entitled to equitable tolling of habeas limitations.” Id., at 30a. But Perkins had not established exceptional circumstances, the District Court determined. In any event, the District Court observed, equitable tolling requires diligence and Perkins “ha[d] failed utterly to demonstrate the necessary diligence in exercising his rights.” Id., at 31a. Alternatively, the Dis-trict Court found that Perkins had failed to meet the strict standard by which pleas of actual innocence are mea-sured: He had not shown that, taking account of all the evidence, “it is more likely than not that no reasonable juror would have convicted him,” or even that the evidence was new. Id., at 30a–31a. Perkins appealed the District Court’s judgment. Al-though recognizing that AEDPA’s statute of limitations had expired and that Perkins had not diligently pursued his rights, the Sixth Circuit granted a certificate of appealability limited to a single question: Is reasonable diligence a precondition to relying on actual innocence as a gateway to adjudication of a federal habeas petition on the merits? Certificate of Appealability 2–3. On consideration of the certified question, the Court of Appeals reversed the District Court’s judgment. Adhering to Circuit precedent, Souter v. Jones, 395 F.3d 577, 597–602 (2005), the Sixth Circuit held that Perkins’ gateway actual-innocence allegations allowed him to present his ineffective-assistance-of-counsel claim as if it were filed on time. On remand, the Court of Appeals instructed, “the [D]istrict [C]ourt [should] fully consider whether Perkins assert[ed] a credible claim of actual innocence.” 670 F. 3d, at 676. We granted certiorari to resolve a Circuit conflict on whether AEDPA’s statute of limitations can be overcome by a showing of actual innocence. 568 U. S. ___ (2012). Compare, e.g., San Martin v. McNeil, 633 F.3d 1257, 1267–1268 (CA11 2011) (“A court . . . may consider an untimely §2254 petition if, by refusing to consider the petition for untimeliness, the court thereby would endorse a ‘fundamental miscarriage of justice’ because it would require that an individual who is actually innocent remain imprisoned.”), with, e.g., Escamilla v. Jungwirth, 426 F.3d 868, 871–872 (CA7 2005) (“Prisoners claiming to be innocent, like those contending that other events spoil the conviction, must meet the statutory requirement of timely action.”). See also Rivas v. Fischer, 687 F.3d 514, 548 (CA2 2012) (collecting cases). II A In Holland v. Florida, 560 U. S. ___ (2010), this Court addressed the circumstances in which a federal habeas petitioner could invoke the doctrine of “equitable tolling.” Holland held that “a [habeas] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id., at ___ (slip op., at 16–17) (internal quotation marks omitted). As the courts below comprehended, Perkins does not qualify for equitable tolling. In possession of all three affidavits by July 2002, he waited nearly six years to seek federal postconviction relief. “Such a delay falls far short of demonstrating the . . . diligence” required to entitle a petitioner to equitable tolling. App. to Pet. for Cert. 31a (District Court opinion). See also Certificate of Appealability 2. Perkins, however, asserts not an excuse for filing after the statute of limitations has run. Instead, he maintains that a plea of actual innocence can overcome AEDPA’s one-year statute of limitations. He thus seeks an equi-table exception to §2244(d)(1), not an extension of the time statutorily prescribed. See Rivas, 687 F. 3d, at 547, n. 42 (distinguishing from “equitable tolling” a plea to override the statute of limitations when actual innocence is shown). Decisions of this Court support Perkins’ view of the significance of a convincing actual-innocence claim. We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence. Herrera v. Collins, 506 U.S. 390, 404–405 (1993). We have recognized, however, that a prisoner “otherwise subject to defenses of abusive or successive use of the writ [of habeas corpus] may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence.” Id., at 404 (citing Sawyer v. Whitley, 505 U.S. 333 (1992)). See also Murray v. Carrier, 477 U.S. 478, 496 (1986) (“[W]e think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”). In other words, a credible showing of actual innocence may allow a prisoner to pursue his constitu-tional claims (here, ineffective assistance of counsel) on the merits notwithstanding the existence of a procedural bar to relief. “This rule, or fundamental miscarriage of justice exception, is grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera, 506 U. S., at 404. We have applied the miscarriage of justice exception to overcome various procedural defaults. These include “successive” petitions asserting previously rejected claims, see Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality opinion), “abusive” petitions asserting in a second petition claims that could have been raised in a first petition, see McCleskey v. Zant, 499 U.S. 467, 494–495 (1991), failure to develop facts in state court, see Keeney v. Tamayo-Reyes, 504 U.S. 1, 11–12 (1992), and failure to observe state procedural rules, including filing deadlines, see Coleman v. Thompson, 501 U.S. 722, 750 (1991); Carrier, 477 U. S., at 495–496. The miscarriage of justice exception, our decisions bear out, survived AEDPA’s passage. In Calderon v. Thompson, 523 U.S. 538 (1998), we applied the exception to hold that a federal court may, consistent with AEDPA, recall its mandate in order to revisit the merits of a decision. Id., at 558 (“The miscarriage of justice standard is altogether consistent . . . with AEDPA’s central concern that the merits of concluded criminal proceedings not be revisited in the absence of a strong showing of actual innocence.”). In Bousley v. United States, 523 U.S. 614, 622 (1998), we held, in the context of §2255, that actual in-nocence may overcome a prisoner’s failure to raise a constitutional objection on direct review. Most recently, in House, we reiterated that a prisoner’s proof of actual innocence may provide a gateway for federal habeas review of a procedurally defaulted claim of constitutional error. 547 U. S., at 537–538. These decisions “see[k] to balance the societal interests in finality, comity, and conservation of scarce judicial re-sources with the individual interest in justice that arises in the extraordinary case.” Schlup, 513 U. S., at 324. Sensitivity to the injustice of incarcerating an innocent individual should not abate when the impediment is AEDPA’s statute of limitations. As just noted, see supra, at 8, we have held that the miscarriage of justice exception applies to state procedural rules, including filing deadlines. Coleman, 501 U. S., at 750. A federal court may invoke the miscarriage of justice exception to justify consideration of claims defaulted in state court under state timeliness rules. See ibid. The State’s reading of AEDPA’s time prescription would thus accord greater force to a federal deadline than to a simi-larly designed state deadline. It would be passing strange to interpret a statute seeking to promote federalism and comity as requiring stricter enforcement of federal procedural rules than procedural rules established and enforced by the States. B The State ties to §2244(d)’s text its insistence that AEDPA’s statute of limitations precludes courts from considering late-filed actual-innocence gateway claims. “Section 2244(d)(1)(D),” the State contends, “forecloses any argument that a habeas petitioner has unlimited time to present new evidence in support of a constitutional claim.” Brief for Petitioner 17. That is so, the State maintains, because AEDPA prescribes a comprehensive system for determining when its one-year limitations period begins to run. “Included within that system,” the State observes, “is a specific trigger for the precise circumstance presented here: a constitutional claim based on new evidence.” Ibid. Section 2244(d)(1)(D) runs the clock from “the date on which the factual predicate of the claim . . . could have been discovered through the exercise of due diligence.” In light of that provision, the State urges, “there is no need for the courts to act in equity to provide additional time for persons who allege actual innocence as a gateway to their claims of constitutional error.” Ibid. Perkins’ request for an equitable exception to the statute of limitations, the State charges, would “rende[r] superfluous this carefully scripted scheme.” Id., at 18. The State’s argument in this regard bears blinders. AEDPA’s time limitations apply to the typical case in which no allegation of actual innocence is made. The miscarriage of justice exception, we underscore, applies to a severely confined category: cases in which new evidence shows “it is more likely than not that no reasonable ju- ror would have convicted [the petitioner].” Schlup, 513 U. S., at 329 (internal quotation marks omitted). Section 2244(d)(1)(D) is both modestly more stringent (because it requires diligence) and dramatically less stringent (because it requires no showing of innocence). Many petitions that could not pass through the actual-innocence gateway will be timely or not measured by §2244(d)(1)(D)’s triggering provision. That provision, in short, will hardly be rendered superfluous by recognition of the miscarriage of justice exception. The State further relies on provisions of AEDPA other than §2244(d)(1)(D), namely, §§2244(b)(2)(B) and 2254(e) (2), to urge that Congress knew how to incorporate the miscarriage of justice exception when it was so minded. Section 2244(b)(2)(B), the State observes, provides that a petitioner whose first federal habeas petition has already been adjudicated when new evidence comes to light may file a second-or-successive petition when, and only when, the facts underlying the new claim would “es-tablish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” §2244(b)(2)(B)(ii). And §2254(e)(2), which generally bars evidentiary hearings in federal habeas proceedings ini-tiated by state prisoners, includes an exception for pris-oners who present new evidence of their innocence. See §§2254(e)(2)(A)(ii), (B) (permitting evidentiary hearings in federal court if “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense”). But Congress did not simply incorporate the miscarriage of justice exception into §§2244(b)(2)(B) and 2254(e)(2). Rather, Congress constrained the application of the exception. Prior to AEDPA’s enactment, a court could grant relief on a second-or-successive petition, then known as an “abusive” petition, if the petitioner could show that “a fundamental miscarriage of justice would result from a failure to entertain the claim.” McCleskey, 499 U. S., at 495. Section 2244(b)(2)(B) limits the exception to cases in which “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,” and the petitioner can establish that no reasonable factfinder “would have found [her] guilty of the underlying offense” by “clear and convincing evidence.” Congress thus required second-or-successive habeas petitioners attempting to benefit from the miscarriage of justice exception to meet a higher level of proof (“clear and convincing evidence”) and to satisfy a diligence requirement that did not exist prior to AEDPA’s passage. Likewise, petitioners asserting actual innocence pre-AEDPA could obtain evidentiary hearings in federal court even if they failed to develop facts in state court. See Keeney, 504 U. S., at 12 (“A habeas petitioner’s failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing.”). Under AEDPA, a petitioner seeking an evidentiary hearing must show diligence and, in addition, establish her actual innocence by clear and convincing evidence. §§2254(e)(2)(A)(ii), (B). Sections 2244(b)(2)(B) and 2254(e)(2) thus reflect Congress’ will to modify the miscarriage of justice exception with respect to second-or-successive petitions and the hold-ing of evidentiary hearings in federal court. These pro-visions do not demonstrate Congress’ intent to preclude courts from applying the exception, unmodified, to “the type of petition at issue here”—an untimely first federal habeas petition alleging a gateway actual-innocence claim. House, 547 U. S., at 539.[1] The more rational inference to draw from Congress’ incorporation of a modified version of the miscarriage of justice exception in §§2244(b)(2)(B) and 2254(e)(2) is simply this: In a case not governed by those provisions, i.e., a first petition for federal habeas relief, the miscarriage of justice exception survived AEDPA’s passage intact and unrestricted.[2] Our reading of the statute is supported by the Court’s opinion in Holland. “[E]quitable principles have traditionally governed the substantive law of habeas corpus,” Holland reminded, and affirmed that “we will not construe a statute to displace courts’ traditional equitable authority absent the clearest command.” 560 U. S., at ___ (slip op., at 13) (internal quotation marks omitted). The text of §2244(d)(1) contains no clear command countering the courts’ equitable authority to invoke the miscarriage of justice exception to overcome expiration of the statute of limitations governing a first federal habeas petition. As we observed in Holland, “AEDPA seeks to eliminate delays in the federal habeas review process. But AEDPA seeks to do so without undermining basic habeas corpus principles and while seeking to harmonize the new statute with prior law . . . . When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the writ of habeas corpus plays a vital role in protecting constitutional rights.” Id., at ___ (slip op., at 16) (citations and internal quotation marks omitted).[3] III Having rejected the State’s argument that §2244(d) (1)(D) precludes a court from entertaining an un- timely first federal habeas petition raising a convincing claim of actual innocence, we turn to the State’s further objection to the Sixth Circuit’s opinion. Even if a habeas petitioner asserting a credible claim of actual innocence may overcome AEDPA’s statute of limitations, the State argues, the Court of Appeals erred in finding that no threshold diligence requirement at all applies to Perkins’ petition. While formally distinct from its argument that §2244(d)(1)(D)’s text forecloses a late-filed claim alleging actual innocence, the State’s contention makes scant sense. Section 2244(d)(1)(D) requires a habeas petitioner to file a claim within one year of the time in which new evidence “could have been discovered through the exercise of due diligence.” It would be bizarre to hold that a habeas petitioner who asserts a convincing claim of actual innocence may overcome the statutory time bar §2244(d)(1)(D) erects, yet simultaneously encounter a court-fashioned diligence barrier to pursuit of her petition. See 670 F. 3d, at 673 (“Requiring reasonable diligence effectively makes the concept of the actual innocence gateway redundant, since petitioners . . . seek [an equitable exception only] when they were not reasonably diligent in complying with §2244(d)(1)(D).”). While we reject the State’s argument that habeas petitioners who assert convincing actual-innocence claims must prove diligence to cross a federal court’s threshold, we hold that the Sixth Circuit erred to the extent that it eliminated timing as a factor relevant in evaluating the reliability of a petitioner’s proof of innocence. To invoke the miscarriage of justice exception to AEDPA’s statute of limitations, we repeat, a petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 U. S., at 327. Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing. Perkins so acknowl-edges. See Brief for Respondent 52 (unjustified delay may figure in determining “whether a petitioner has made a sufficient showing of innocence”). As we stated in Schlup, “[a] court may consider how the timing of the submission and the likely credibility of [a petitioner’s] affiants bear on the probable reliability of . . . evidence [of actual innocence].” 513 U. S., at 332. See also House, 547 U. S., at 537. Considering a petitioner’s diligence, not discretely, but as part of the assessment whether actual innocence has been convincingly shown, attends to the State’s concern that it will be prejudiced by a prisoner’s untoward delay in proffering new evidence. The State fears that a prisoner might “lie in wait and use stale evidence to collaterally attack his conviction . . . when an elderly witness has died and cannot appear at a hearing to rebut new evidence.” Brief for Petitioner 25. The timing of such a petition, however, should seriously undermine the credibility of the actual-innocence claim. Moreover, the deceased witness’ prior testimony, which would have been subject to cross-examination, could be introduced in the event of a new trial. See Crawford v. Washington, 541 U.S. 36, 53–54 (2004) (recognizing exception to the Confrontation Clause where witness is unavailable and the defendant had a prior opportunity for cross-examination). And frivolous petitions should occasion instant dismissal. See 28 U. S. C. §2254 Rule 4. Focusing on the merits of a petitioner’s actual-innocence claim and taking account of delay in that context, rather than treating timeliness as a threshold inquiry, is tuned to the rationale underlying the miscarriage of justice exception—i.e., ensuring “that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera, 506 U. S., at 404.[4] IV We now return to the case at hand. The District Court proceeded properly in first determining that Perkins’ claim was filed well beyond AEDPA’s limitations period and that equitable tolling was unavailable to Perkins because he could demonstrate neither exceptional circumstances nor diligence. See supra, at 5. The District Court then found that Perkins’ alleged newly discovered evidence, i.e., the information contained in the three affidavits, was “substantially available to [Perkins] at trial.” App. to Pet. for Cert. 31a. Moreover, the proffered evidence, even if “new,” was hardly adequate to show that, had it been presented at trial, no reasonable juror would have convicted Perkins. Id., at 30a–31a. The Sixth Circuit granted a certificate of appealability limited to the question whether reasonable diligence is a precondition to reliance on actual innocence as a gateway to adjudication of a federal habeas petition on the merits. We have explained that untimeliness, although not an unyielding ground for dismissal of a petition, does bear on the credibility of evidence proffered to show actual innocence. On remand, the District Court’s appraisal of Perkins’ petition as insufficient to meet Schlup’s actual-innocence standard should be dispositive, absent cause, which we do not currently see, for the Sixth Circuit to upset that evaluation. We stress once again that the Schlup standard is demanding. The gateway should open only when a petition presents “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” 513 U. S., at 316. * * * For the reasons stated, the judgment of the Sixth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 In House, we rejected the analogous argument that AEDPA re-placed the standard for actual-innocence gateway claims prescribed in Schlup v. Delo, 513 U.S. 298, 327 (1995) (petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence”), with a “clear and convincing” evidence requirement. 547 U. S., at 539 (internal quotation marks omitted). As here, the State relied on §§2244(b)(2)(B)(ii) and 2254(e)(2) to support its argument. But “[n]either provision address[ed] the type of petition at issue . . . [,] a first federal habeas petition seeking consideration of defaulted claims based on a showing of actual innocence.” Ibid. Consequently, we held inapplicable to first petitions the stricter standard AEDPA prescribed for second-or-successive petitions. Ibid. 2 Prior to AEDPA, it is true, this Court had not ruled that a credible claim of actual innocence could supersede a federal statute of limitations. The reason why that is so is evident: Pre-AEDPA, petitions for federal habeas relief were not governed by any statute of limitations. Notably, we said in Coleman v. Thompson, 501 U.S. 722 (1991), that a petitioner who failed to comply with a timeliness requirement in state court could nevertheless plead her claims on the merits in federal court if she could show that “failure to consider the claims [would] result in a fundamental miscarriage of justice.” Id., at 750. 3 For eight pages, the dissent stridently insists that federal (although not state) statutes of limitations allow no exceptions not contained in the text. Well, not quite so, the dissent ultimately acknowledges. Post, at 8. Even AEDPA’s statute of limitations, the dissent admits, is subject to equitable tolling. But that is because equitable tolling “can be seen as a reasonable assumption of genuine legislative intent.” Post, at 9. Why is it not an equally reasonable assumption that Congress would want a limitations period to yield when what is at stake is a State’s incarceration of an individual for a crime, it has become clear, no reasonable person would find he committed? For all its bluster,the dissent agrees with the Court on a crucial point: Congress legis-lates against the backdrop of existing law. Post, at 10. At the timeof AEDPA’s enactment, multiple decisions of this Court applied the miscarriage of justice exception to overcome various threshold barriers to relief. See supra, at 7–9. It is hardly “unprecedented,” therefore, to conclude that “Congress intended or could have anticipated [a miscarriage of justice] exception” when it enacted AEDPA. Post, at 10–11. 4 We note one caveat: A showing that delay was part of a deliberate attempt to manipulate the case, say by waiting until a key prosecution witness died or was deported, might raise a different ground for withholding equitable relief. No such contention was presented here, however, so we do not discuss the point. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 12–126 _________________ GREG McQUIGGIN, WARDEN, PETITIONER v. FLOYD PERKINS on writ of certiorari to the united states court of appeals for the sixth circuit [May 28, 2013] Justice Ginsburg delivered the opinion of the Court. This case concerns the “actual innocence” gateway to federal habeas review applied in Schlup v. Delo, 513 U.S. 298 (1995), and further explained in House v. Bell, 547 U.S. 518 (2006). In those cases, a convincing showing of actual innocence enabled habeas petitioners to overcome a procedural bar to consideration of the merits of their constitutional claims. Here, the question arises in the context of 28 U. S. C. §2244(d)(1), the statute of limitations on federal habeas petitions prescribed in the Antiterrorism and Effective Death Penalty Act of 1996. Specifically, if the petitioner does not file her federal habeas peti- tion, at the latest, within one year of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” §2244(d)(1)(D), can the time bar be overcome by a convincing showing that she committed no crime? We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U. S., at 329; see House, 547 U. S., at 538 (emphasizing that the Schlup standard is “demanding” and seldom met). And in making an assessment of the kind Schlup envisioned, “the timing of the [petition]” is a factor bearing on the “reliability of th[e] evidence” purporting to show actual innocence. Schlup, 513 U. S., at 332. In the instant case, the Sixth Circuit acknowledged that habeas petitioner Perkins (respondent here) had filed his petition after the statute of limitations ran out, and had “failed to diligently pursue his rights.” Order in No. 09–1875, (CA6, Feb. 24, 2010), p. 2 (Certificate of Appealability). Nevertheless, the Court of Appeals reversed the decision of the District Court denying Perkins’ petition, and held that Perkins’ actual-innocence claim allowed him to pursue his habeas petition as if it had been filed on time. 670 F.3d 665, 670 (2012). The appeals court ap-parently considered a petitioner’s delay irrelevant to ap-praisal of an actual-innocence claim. See ibid. We vacate the Court of Appeals’ judgment and remand the case. Our opinion clarifies that a federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been re- liably shown. See Brief for Respondent 45 (habeas court “could . . . hold the unjustified delay against the petitioner when making credibility findings as to whether the [actual-innocence] exception has been met”). I A On March 4, 1993, respondent Floyd Perkins attended a party in Flint, Michigan, in the company of his friend, Rodney Henderson, and an acquaintance, Damarr Jones. The three men left the party together. Henderson was later discovered on a wooded trail, murdered by stab wounds to his head. Perkins was charged with the murder of Henderson. At trial, Jones was the key witness for the prosecution. He testified that Perkins alone committed the murder while Jones looked on. App. 55. Chauncey Vaughn, a friend of Perkins and Henderson, testified that, prior to the murder, Perkins had told him he would kill Henderson, id., at 39, and that Perkins later called Vaughn, confessing to his commission of the crime. Id., at 36–38. A third witness, Torriano Player, also a friend of both Perkins and Henderson, testified that Perkins told him, had he known how Player felt about Henderson, he would not have killed Henderson. Id., at 74. Perkins, testifying in his own defense, offered a different account of the episode. He testified that he left Hender-son and Jones to purchase cigarettes at a convenience store. When he exited the store, Perkins related, Jones and Henderson were gone. Id., at 84. Perkins said that he then visited his girlfriend. Id., at 87. About an hour later, Perkins recalled, he saw Jones standing under a streetlight with blood on his pants, shoes, and plaid coat. Id., at 90. The jury convicted Perkins of first-degree murder. He was sentenced to life in prison without the possibility of parole on October 27, 1993. The Michigan Court of Appeals affirmed Perkins’ conviction and sentence, and the Michigan Supreme Court denied Perkins leave to appeal on January 31, 1997. Perkins’ conviction became final on May 5, 1997. B Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110Stat. 1214, a state prisoner ordinarily has one year to file a federal petition for habeas corpus, starting from “the date on which the judgment became final by the conclusion of direct review or the ex-piration of the time for seeking such review.” 28 U. S. C. §2244(d)(1)(A). If the petition alleges newly discovered evidence, however, the filing deadline is one year from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” §2244(d)(1)(D). Perkins filed his federal habeas corpus petition on June 13, 2008, more than 11 years after his conviction became final. He alleged, inter alia, ineffective assistance on the part of his trial attorney, depriving him of his Sixth Amendment right to competent counsel. To overcome AEDPA’s time limitations, Perkins asserted newly discovered evidence of actual innocence. He relied on three affidavits, each pointing to Jones, not Perkins, as Henderson’s murderer. The first affidavit, dated January 30, 1997, was submitted by Perkins’ sister, Ronda Hudson. Hudson stated that she had heard from a third party, Louis Ford, that Jones bragged about stabbing Henderson and had taken his clothes to the cleaners after the murder. App. to Pet. for Cert. 54a–55a. The second affidavit, dated March 16, 1999, was subscribed to by Demond Louis, Chauncey Vaughn’s younger brother. Louis stated that, on the night of the murder, Jones confessed to him that he had just killed Henderson. Louis also described the clothes Jones wore that night, bloodstained orange shoes and orange pants, and a colorful shirt. Id., at 50a–53a. The next day, Louis added, he accompanied Jones, first to a dumpster where Jones disposed of the bloodstained shoes, and then to the cleaners. Finally, Perkins presented the July 16, 2002 affidavit of Linda Fleming, an employee at Pro-Clean Cleaners in 1993. She stated that, on or about March 4, 1993, a man matching Jones’s description entered the shop and asked her whether bloodstains could be removed from the pants and a shirt he brought in. The pants were orange, she recalled, and heavily stained with blood, as was the multicolored shirt left for cleaning along with the pants. Id., at 48a–49a. The District Court found the affidavits insufficient to entitle Perkins to habeas relief. Characterizing the affidavits as newly discovered evidence was “dubious,” the District Court observed, in light of what Perkins knew about the underlying facts at the time of trial. Id., at 29a. But even assuming qualification of the affidavits as evidence newly discovered, the District Court next explained, “[Perkins’] petition [was] untimely under §2244(d)(1)(D).” Ibid. “[If] the statute of limitations began to run as of the date of the latest of th[e] affidavits, July 16, 2002,” the District Court noted, then “absent tolling, [Perkins] had until July 16, 2003 in which to file his habeas petition.” Ibid. Perkins, however, did not file until nearly five years later, on June 13, 2008. Under Sixth Circuit precedent, the District Court stated, “a habeas petitioner who demonstrates a credible claim of actual innocence based on new evidence may, in ex-ceptional circumstances, be entitled to equitable tolling of habeas limitations.” Id., at 30a. But Perkins had not established exceptional circumstances, the District Court determined. In any event, the District Court observed, equitable tolling requires diligence and Perkins “ha[d] failed utterly to demonstrate the necessary diligence in exercising his rights.” Id., at 31a. Alternatively, the Dis-trict Court found that Perkins had failed to meet the strict standard by which pleas of actual innocence are mea-sured: He had not shown that, taking account of all the evidence, “it is more likely than not that no reasonable juror would have convicted him,” or even that the evidence was new. Id., at 30a–31a. Perkins appealed the District Court’s judgment. Al-though recognizing that AEDPA’s statute of limitations had expired and that Perkins had not diligently pursued his rights, the Sixth Circuit granted a certificate of appealability limited to a single question: Is reasonable diligence a precondition to relying on actual innocence as a gateway to adjudication of a federal habeas petition on the merits? Certificate of Appealability 2–3. On consideration of the certified question, the Court of Appeals reversed the District Court’s judgment. Adhering to Circuit precedent, Souter v. Jones, 395 F.3d 577, 597–602 (2005), the Sixth Circuit held that Perkins’ gateway actual-innocence allegations allowed him to present his ineffective-assistance-of-counsel claim as if it were filed on time. On remand, the Court of Appeals instructed, “the [D]istrict [C]ourt [should] fully consider whether Perkins assert[ed] a credible claim of actual innocence.” 670 F. 3d, at 676. We granted certiorari to resolve a Circuit conflict on whether AEDPA’s statute of limitations can be overcome by a showing of actual innocence. 568 U. S. ___ (2012). Compare, e.g., San Martin v. McNeil, 633 F.3d 1257, 1267–1268 (CA11 2011) (“A court . . . may consider an untimely §2254 petition if, by refusing to consider the petition for untimeliness, the court thereby would endorse a ‘fundamental miscarriage of justice’ because it would require that an individual who is actually innocent remain imprisoned.”), with, e.g., Escamilla v. Jungwirth, 426 F.3d 868, 871–872 (CA7 2005) (“Prisoners claiming to be innocent, like those contending that other events spoil the conviction, must meet the statutory requirement of timely action.”). See also Rivas v. Fischer, 687 F.3d 514, 548 (CA2 2012) (collecting cases). II A In Holland v. Florida, 560 U. S. ___ (2010), this Court addressed the circumstances in which a federal habeas petitioner could invoke the doctrine of “equitable tolling.” Holland held that “a [habeas] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id., at ___ (slip op., at 16–17) (internal quotation marks omitted). As the courts below comprehended, Perkins does not qualify for equitable tolling. In possession of all three affidavits by July 2002, he waited nearly six years to seek federal postconviction relief. “Such a delay falls far short of demonstrating the . . . diligence” required to entitle a petitioner to equitable tolling. App. to Pet. for Cert. 31a (District Court opinion). See also Certificate of Appealability 2. Perkins, however, asserts not an excuse for filing after the statute of limitations has run. Instead, he maintains that a plea of actual innocence can overcome AEDPA’s one-year statute of limitations. He thus seeks an equi-table exception to §2244(d)(1), not an extension of the time statutorily prescribed. See Rivas, 687 F. 3d, at 547, n. 42 (distinguishing from “equitable tolling” a plea to override the statute of limitations when actual innocence is shown). Decisions of this Court support Perkins’ view of the significance of a convincing actual-innocence claim. We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence. Herrera v. Collins, 506 U.S. 390, 404–405 (1993). We have recognized, however, that a prisoner “otherwise subject to defenses of abusive or successive use of the writ [of habeas corpus] may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence.” Id., at 404 (citing Sawyer v. Whitley, 505 U.S. 333 (1992)). See also Murray v. Carrier, 477 U.S. 478, 496 (1986) (“[W]e think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”). In other words, a credible showing of actual innocence may allow a prisoner to pursue his constitu-tional claims (here, ineffective assistance of counsel) on the merits notwithstanding the existence of a procedural bar to relief. “This rule, or fundamental miscarriage of justice exception, is grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera, 506 U. S., at 404. We have applied the miscarriage of justice exception to overcome various procedural defaults. These include “successive” petitions asserting previously rejected claims, see Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality opinion), “abusive” petitions asserting in a second petition claims that could have been raised in a first petition, see McCleskey v. Zant, 499 U.S. 467, 494–495 (1991), failure to develop facts in state court, see Keeney v. Tamayo-Reyes, 504 U.S. 1, 11–12 (1992), and failure to observe state procedural rules, including filing deadlines, see Coleman v. Thompson, 501 U.S. 722, 750 (1991); Carrier, 477 U. S., at 495–496. The miscarriage of justice exception, our decisions bear out, survived AEDPA’s passage. In Calderon v. Thompson, 523 U.S. 538 (1998), we applied the exception to hold that a federal court may, consistent with AEDPA, recall its mandate in order to revisit the merits of a decision. Id., at 558 (“The miscarriage of justice standard is altogether consistent . . . with AEDPA’s central concern that the merits of concluded criminal proceedings not be revisited in the absence of a strong showing of actual innocence.”). In Bousley v. United States, 523 U.S. 614, 622 (1998), we held, in the context of §2255, that actual in-nocence may overcome a prisoner’s failure to raise a constitutional objection on direct review. Most recently, in House, we reiterated that a prisoner’s proof of actual innocence may provide a gateway for federal habeas review of a procedurally defaulted claim of constitutional error. 547 U. S., at 537–538. These decisions “see[k] to balance the societal interests in finality, comity, and conservation of scarce judicial re-sources with the individual interest in justice that arises in the extraordinary case.” Schlup, 513 U. S., at 324. Sensitivity to the injustice of incarcerating an innocent individual should not abate when the impediment is AEDPA’s statute of limitations. As just noted, see supra, at 8, we have held that the miscarriage of justice exception applies to state procedural rules, including filing deadlines. Coleman, 501 U. S., at 750. A federal court may invoke the miscarriage of justice exception to justify consideration of claims defaulted in state court under state timeliness rules. See ibid. The State’s reading of AEDPA’s time prescription would thus accord greater force to a federal deadline than to a simi-larly designed state deadline. It would be passing strange to interpret a statute seeking to promote federalism and comity as requiring stricter enforcement of federal procedural rules than procedural rules established and enforced by the States. B The State ties to §2244(d)’s text its insistence that AEDPA’s statute of limitations precludes courts from considering late-filed actual-innocence gateway claims. “Section 2244(d)(1)(D),” the State contends, “forecloses any argument that a habeas petitioner has unlimited time to present new evidence in support of a constitutional claim.” Brief for Petitioner 17. That is so, the State maintains, because AEDPA prescribes a comprehensive system for determining when its one-year limitations period begins to run. “Included within that system,” the State observes, “is a specific trigger for the precise circumstance presented here: a constitutional claim based on new evidence.” Ibid. Section 2244(d)(1)(D) runs the clock from “the date on which the factual predicate of the claim . . . could have been discovered through the exercise of due diligence.” In light of that provision, the State urges, “there is no need for the courts to act in equity to provide additional time for persons who allege actual innocence as a gateway to their claims of constitutional error.” Ibid. Perkins’ request for an equitable exception to the statute of limitations, the State charges, would “rende[r] superfluous this carefully scripted scheme.” Id., at 18. The State’s argument in this regard bears blinders. AEDPA’s time limitations apply to the typical case in which no allegation of actual innocence is made. The miscarriage of justice exception, we underscore, applies to a severely confined category: cases in which new evidence shows “it is more likely than not that no reasonable ju- ror would have convicted [the petitioner].” Schlup, 513 U. S., at 329 (internal quotation marks omitted). Section 2244(d)(1)(D) is both modestly more stringent (because it requires diligence) and dramatically less stringent (because it requires no showing of innocence). Many petitions that could not pass through the actual-innocence gateway will be timely or not measured by §2244(d)(1)(D)’s triggering provision. That provision, in short, will hardly be rendered superfluous by recognition of the miscarriage of justice exception. The State further relies on provisions of AEDPA other than §2244(d)(1)(D), namely, §§2244(b)(2)(B) and 2254(e) (2), to urge that Congress knew how to incorporate the miscarriage of justice exception when it was so minded. Section 2244(b)(2)(B), the State observes, provides that a petitioner whose first federal habeas petition has already been adjudicated when new evidence comes to light may file a second-or-successive petition when, and only when, the facts underlying the new claim would “es-tablish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” §2244(b)(2)(B)(ii). And §2254(e)(2), which generally bars evidentiary hearings in federal habeas proceedings ini-tiated by state prisoners, includes an exception for pris-oners who present new evidence of their innocence. See §§2254(e)(2)(A)(ii), (B) (permitting evidentiary hearings in federal court if “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense”). But Congress did not simply incorporate the miscarriage of justice exception into §§2244(b)(2)(B) and 2254(e)(2). Rather, Congress constrained the application of the exception. Prior to AEDPA’s enactment, a court could grant relief on a second-or-successive petition, then known as an “abusive” petition, if the petitioner could show that “a fundamental miscarriage of justice would result from a failure to entertain the claim.” McCleskey, 499 U. S., at 495. Section 2244(b)(2)(B) limits the exception to cases in which “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,” and the petitioner can establish that no reasonable factfinder “would have found [her] guilty of the underlying offense” by “clear and convincing evidence.” Congress thus required second-or-successive habeas petitioners attempting to benefit from the miscarriage of justice exception to meet a higher level of proof (“clear and convincing evidence”) and to satisfy a diligence requirement that did not exist prior to AEDPA’s passage. Likewise, petitioners asserting actual innocence pre-AEDPA could obtain evidentiary hearings in federal court even if they failed to develop facts in state court. See Keeney, 504 U. S., at 12 (“A habeas petitioner’s failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing.”). Under AEDPA, a petitioner seeking an evidentiary hearing must show diligence and, in addition, establish her actual innocence by clear and convincing evidence. §§2254(e)(2)(A)(ii), (B). Sections 2244(b)(2)(B) and 2254(e)(2) thus reflect Congress’ will to modify the miscarriage of justice exception with respect to second-or-successive petitions and the hold-ing of evidentiary hearings in federal court. These pro-visions do not demonstrate Congress’ intent to preclude courts from applying the exception, unmodified, to “the type of petition at issue here”—an untimely first federal habeas petition alleging a gateway actual-innocence claim. House, 547 U. S., at 539.[1] The more rational inference to draw from Congress’ incorporation of a modified version of the miscarriage of justice exception in §§2244(b)(2)(B) and 2254(e)(2) is simply this: In a case not governed by those provisions, i.e., a first petition for federal habeas relief, the miscarriage of justice exception survived AEDPA’s passage intact and unrestricted.[2] Our reading of the statute is supported by the Court’s opinion in Holland. “[E]quitable principles have traditionally governed the substantive law of habeas corpus,” Holland reminded, and affirmed that “we will not construe a statute to displace courts’ traditional equitable authority absent the clearest command.” 560 U. S., at ___ (slip op., at 13) (internal quotation marks omitted). The text of §2244(d)(1) contains no clear command countering the courts’ equitable authority to invoke the miscarriage of justice exception to overcome expiration of the statute of limitations governing a first federal habeas petition. As we observed in Holland, “AEDPA seeks to eliminate delays in the federal habeas review process. But AEDPA seeks to do so without undermining basic habeas corpus principles and while seeking to harmonize the new statute with prior law . . . . When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the writ of habeas corpus plays a vital role in protecting constitutional rights.” Id., at ___ (slip op., at 16) (citations and internal quotation marks omitted).[3] III Having rejected the State’s argument that §2244(d) (1)(D) precludes a court from entertaining an un- timely first federal habeas petition raising a convincing claim of actual innocence, we turn to the State’s further objection to the Sixth Circuit’s opinion. Even if a habeas petitioner asserting a credible claim of actual innocence may overcome AEDPA’s statute of limitations, the State argues, the Court of Appeals erred in finding that no threshold diligence requirement at all applies to Perkins’ petition. While formally distinct from its argument that §2244(d)(1)(D)’s text forecloses a late-filed claim alleging actual innocence, the State’s contention makes scant sense. Section 2244(d)(1)(D) requires a habeas petitioner to file a claim within one year of the time in which new evidence “could have been discovered through the exercise of due diligence.” It would be bizarre to hold that a habeas petitioner who asserts a convincing claim of actual innocence may overcome the statutory time bar §2244(d)(1)(D) erects, yet simultaneously encounter a court-fashioned diligence barrier to pursuit of her petition. See 670 F. 3d, at 673 (“Requiring reasonable diligence effectively makes the concept of the actual innocence gateway redundant, since petitioners . . . seek [an equitable exception only] when they were not reasonably diligent in complying with §2244(d)(1)(D).”). While we reject the State’s argument that habeas petitioners who assert convincing actual-innocence claims must prove diligence to cross a federal court’s threshold, we hold that the Sixth Circuit erred to the extent that it eliminated timing as a factor relevant in evaluating the reliability of a petitioner’s proof of innocence. To invoke the miscarriage of justice exception to AEDPA’s statute of limitations, we repeat, a petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 U. S., at 327. Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing. Perkins so acknowl-edges. See Brief for Respondent 52 (unjustified delay may figure in determining “whether a petitioner has made a sufficient showing of innocence”). As we stated in Schlup, “[a] court may consider how the timing of the submission and the likely credibility of [a petitioner’s] affiants bear on the probable reliability of . . . evidence [of actual innocence].” 513 U. S., at 332. See also House, 547 U. S., at 537. Considering a petitioner’s diligence, not discretely, but as part of the assessment whether actual innocence has been convincingly shown, attends to the State’s concern that it will be prejudiced by a prisoner’s untoward delay in proffering new evidence. The State fears that a prisoner might “lie in wait and use stale evidence to collaterally attack his conviction . . . when an elderly witness has died and cannot appear at a hearing to rebut new evidence.” Brief for Petitioner 25. The timing of such a petition, however, should seriously undermine the credibility of the actual-innocence claim. Moreover, the deceased witness’ prior testimony, which would have been subject to cross-examination, could be introduced in the event of a new trial. See Crawford v. Washington, 541 U.S. 36, 53–54 (2004) (recognizing exception to the Confrontation Clause where witness is unavailable and the defendant had a prior opportunity for cross-examination). And frivolous petitions should occasion instant dismissal. See 28 U. S. C. §2254 Rule 4. Focusing on the merits of a petitioner’s actual-innocence claim and taking account of delay in that context, rather than treating timeliness as a threshold inquiry, is tuned to the rationale underlying the miscarriage of justice exception—i.e., ensuring “that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera, 506 U. S., at 404.[4] IV We now return to the case at hand. The District Court proceeded properly in first determining that Perkins’ claim was filed well beyond AEDPA’s limitations period and that equitable tolling was unavailable to Perkins because he could demonstrate neither exceptional circumstances nor diligence. See supra, at 5. The District Court then found that Perkins’ alleged newly discovered evidence, i.e., the information contained in the three affidavits, was “substantially available to [Perkins] at trial.” App. to Pet. for Cert. 31a. Moreover, the proffered evidence, even if “new,” was hardly adequate to show that, had it been presented at trial, no reasonable juror would have convicted Perkins. Id., at 30a–31a. The Sixth Circuit granted a certificate of appealability limited to the question whether reasonable diligence is a precondition to reliance on actual innocence as a gateway to adjudication of a federal habeas petition on the merits. We have explained that untimeliness, although not an unyielding ground for dismissal of a petition, does bear on the credibility of evidence proffered to show actual innocence. On remand, the District Court’s appraisal of Perkins’ petition as insufficient to meet Schlup’s actual-innocence standard should be dispositive, absent cause, which we do not currently see, for the Sixth Circuit to upset that evaluation. We stress once again that the Schlup standard is demanding. The gateway should open only when a petition presents “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” 513 U. S., at 316. * * * For the reasons stated, the judgment of the Sixth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 In House, we rejected the analogous argument that AEDPA re-placed the standard for actual-innocence gateway claims prescribed in Schlup v. Delo, 513 U.S. 298, 327 (1995) (petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence”), with a “clear and convincing” evidence requirement. 547 U. S., at 539 (internal quotation marks omitted). As here, the State relied on §§2244(b)(2)(B)(ii) and 2254(e)(2) to support its argument. But “[n]either provision address[ed] the type of petition at issue . . . [,] a first federal habeas petition seeking consideration of defaulted claims based on a showing of actual innocence.” Ibid. Consequently, we held inapplicable to first petitions the stricter standard AEDPA prescribed for second-or-successive petitions. Ibid. 2 Prior to AEDPA, it is true, this Court had not ruled that a credible claim of actual innocence could supersede a federal statute of limitations. The reason why that is so is evident: Pre-AEDPA, petitions for federal habeas relief were not governed by any statute of limitations. Notably, we said in Coleman v. Thompson, 501 U.S. 722 (1991), that a petitioner who failed to comply with a timeliness requirement in state court could nevertheless plead her claims on the merits in federal court if she could show that “failure to consider the claims [would] result in a fundamental miscarriage of justice.” Id., at 750. 3 For eight pages, the dissent stridently insists that federal (although not state) statutes of limitations allow no exceptions not contained in the text. Well, not quite so, the dissent ultimately acknowledges. Post, at 8. Even AEDPA’s statute of limitations, the dissent admits, is subject to equitable tolling. But that is because equitable tolling “can be seen as a reasonable assumption of genuine legislative intent.” Post, at 9. Why is it not an equally reasonable assumption that Congress would want a limitations period to yield when what is at stake is a State’s incarceration of an individual for a crime, it has become clear, no reasonable person would find he committed? For all its bluster,the dissent agrees with the Court on a crucial point: Congress legis-lates against the backdrop of existing law. Post, at 10. At the timeof AEDPA’s enactment, multiple decisions of this Court applied the miscarriage of justice exception to overcome various threshold barriers to relief. See supra, at 7–9. It is hardly “unprecedented,” therefore, to conclude that “Congress intended or could have anticipated [a miscarriage of justice] exception” when it enacted AEDPA. Post, at 10–11. 4 We note one caveat: A showing that delay was part of a deliberate attempt to manipulate the case, say by waiting until a key prosecution witness died or was deported, might raise a different ground for withholding equitable relief. No such contention was presented here, however, so we do not discuss the point.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus McQUIGGIN, WARDEN v. PERKINS certiorari to the united states court of appeals for the sixth circuit No. 12–126. Argued February 25, 2013—Decided May 28, 2013 Rodney Henderson was found stabbed to death after leaving a party in Flint, Michigan, with respondent Floyd Perkins and Damarr Jones. Perkins was charged with murder. Jones, the key prosecution witness, testified that Perkins alone committed the murder while Jones looked on. Perkins, however, testified that Jones and Henderson left him during the evening, and that he later saw Jones with blood on his clothing. Perkins was convicted of first-degree murder and sentenced to life in prison without the possibility of parole. His conviction became final in 1997. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) gives a state prisoner one year to file a federal habeas petition, starting from “the date on which the judgment became final.” 28 U. S. C. §2244(d)(1)(A). But if the petition alleges newly discovered evidence, the filing deadline is one year from “the date on which the factual predicate of the claim . . . could have been discovered through . . . due diligence.” §2244(d)(1)(D). More than 11 years after his conviction became final, Perkins filed his federal habeas petition, alleging, inter alia, ineffective assistance of trial counsel. To overcome AEDPA’s time limitations, he asserted newly discovered evidence of actual innocence, relying on three affidavits, the most recent dated July 16, 2002, each pointing to Jones as the murderer. The District Court found that, even if the affidavits could be characterized as evidence newly discovered, Perkins had failed to show diligence entitling him to equitable tolling of AEDPA’s limitations period. Alternatively, the court found, Perkins had not shown that, taking account of all the evidence, no reasonable juror would have convicted him. The Sixth Circuit reversed. Acknowledging that Perkins’ petition was untimely and that he had not diligently pursued his rights, the court held that Perkins’ actual-innocence claim allowed him to present his ineffective-assistance-of-counsel claim as if it had been filed on time. In so ruling, the court apparently considered Perkins’ delay irrelevant to appraisal of his actual-innocence claim. Held: 1. Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup v. Delo, 513 U.S. 298, and House v. Bell, 547 U.S. 518, or expiration of the AEDPA statute of limitations, as in this case. . (a) Perkins, who waited nearly six years from the date of the 2002 affidavit to file his petition, maintains that an actual-innocence plea can overcome AEDPA’s one-year limitations period. This Court’s decisions support his view. The Court has not resolved whether a prisoner may be entitled to habeas relief based on a freestanding actual-innocence claim, Herrera v. Collins, 506 U.S. 390, 404–405, but it has recognized that a prisoner “otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence,” id., at 404. The Court has applied this “fundamental miscarriage of justice exception” to overcome various procedural defaults, including, as most relevant here, failure to observe state procedural rules, such as filing deadlines. See Coleman v. Thompson, 501 U.S. 722, 750. The exception, the Court’s decisions bear out, survived AEDPA’s passage. See, e.g., Calderon v. Thompson, 523 U.S. 538, 558; House, 547 U. S., at 537–538. These decisions “see[k] to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case.” Schlup, 513 U. S., at 324. Sensitivity to the injustice of incarcerating an innocent individual should not abate when the impediment is AEDPA’s statute of limitations. . (b) The State urges that recognition of a miscarriage of justice exception would render §2244(d)(1)(D) superfluous. That is not so, for AEDPA’s time limitations apply to the typical case in which no actual-innocence claim is made, while the exception applies to a severely confined category: cases in which new evidence shows “it is more likely than not that ‘no reasonable juror’ would have convicted [the petitioner],” Schlup, 513 U. S., at 329. Many petitions that could not pass through the actual-innocence gateway will be timely or not measured by §2244(d)(1)(D)’s triggering provision. Nor does Congress’ inclusion of a miscarriage of justice exception in §§2244(b)(2)(B) and 2254(e)(2) indicate an intent to preclude courts from applying the exception in §2244(d)(1)(D) cases. Congress did not simply incorporate the miscarriage of justice exception into §§2244(b)(2)(B) and 2254(e)(2). Rather, Congress constrained the exception’s application with respect to second-or-successive petitions and the holding of evidentiary hearings in federal court. The more rational inference to draw from the incorporation of a modified version of the exception into other provisions of AEDPA is that, in a case not governed by those provisions, the exception survived AEDPA’s passage intact and unrestricted. . 2. A federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown. A petitioner invoking the miscarriage of justice exception “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 U. S., at 327. Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing. Taking account of the delay in the context of the merits of a petitioner’s actual-innocence claim, rather than treating timeliness as a threshold inquiry, is tuned to the exception’s underlying rationale of ensuring “that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera, 506 U. S., at 404. . 3. Here, the District Court’s appraisal of Perkins’ petition as insufficient to meet Schlup’s actual-innocence standard should be dispositive, absent cause, which this Court does not currently see, for the Sixth Circuit to upset that evaluation. Under Schlup’s demanding standard, the gateway should open only when a petition presents “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” 513 U. S., at 316. . 670 F.3d 665, vacated and remanded. Ginsburg, J., delivered the opinion of the Court, in which Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas, J., joined, and in which Alito, J., joined as to Parts I, II, and III.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a state prisoner ordinarily to file a federal habeas corpus petition within one year of the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. However, under 28 U.S. C. §2244(d)(1)(A), a prisoner ordinarily has one year to file such a petition, starting from the date of the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review, and if the petition alleges newly discovered evidence, however, the filing deadline is one year from that date. Respondent was convicted of first-degree murder and sentenced to life imprisonment. The Michigan Court of Appeals affirmed the conviction and sentence, and the Michigan Supreme Court denied leave to appeal on January 31, 1997. However, the Sixth Circuit reversed the District Court and held that respondent had an actual-innocence gateway claim, which allowed him to present his ineffective-assistance-of-counsel claim as if it had been filed on time. Held: 1. The actual innocence gateway is a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup v. Delo, 513 U. S. 298, or expiration of the statute of limitations. Here, respondent, in possession of all three affidavits by July 2002, waited nearly six years to seek federal postconviction relief. Moreover, the proffered evidence, even if it was new, was hardly adequate to show that, had it been presented at trial, no reasonable juror would have convicted him. . 2. The miscarriage of justice exception to AEDPA is not precluded by a showing of actual innocence.. (a) In order to overcome the procedural bar imposed by Schlup and House v. Bell, 547 U. s. 518, the Court must count unjustifiable delay as a factor in determining whether actual innocence has been re- liably shown. Such delay falls far short of demonstrating the due diligence required to entitle a petitioner to equitable tolling. See, e.g., Schlup, supra, at 547, n. 42. P.. (b) Nor is there any merit to the argument that the miscarriage exception precludes a court from entertaining an un- timely first-or-successive federal petition raising an actual innocence claim. While the State ties its objection to the contention that the Court erred in finding that no threshold diligence requirement at all applies to respondent, there is no merit to that contention, since untimeliness, although not an unyielding ground for dismissal, does bear on the credibility of evidence proffering actual innocence, and since, in a case not governed by those provisions, a defendant must show that it is more likely than not that no reasonable factfinder would have found him guilty in the light of the new evidence. To invoke the miscarriage of justice exception, a prisoner must show (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. It is hardly unprecedented to conclude that Congress intended or could have anticipated such an exception when it enacted the statute. House, supra at 545, at 647. Accordingly, the writ of certiorari is vacated and the case is remanded for further proceedings consistent with this opinion. 670 F.3d 665, vacated and remanded. PERKENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in part and dissenting in part, post, p..

2012_12-547

https://www.oyez.org/cases/2012/12-547

. Burt Lancaster was convicted in Michigan state court of first-degree murder and a related firearm offense. At the time the crime was committed, Michigan’s intermediate appellate court had repeatedly recognized “diminished capacity” as a defense negating the mens rea element of first-degree murder. By the time of Lancaster’s trial and conviction, however, the Michigan Supreme Court in People v. Carpenter, 464 Mich. 223, 627 N.W.2d 276 (2001), had rejected the defense. Lancaster asserts that retroactive application of the Michigan Supreme Court’s decision in Carpenter denied him due process of law. On habeas review, a federal court must assess a claim for relief under the demanding standard set by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under that standard, Lancaster may gain relief only if the state-court decision he assails “was contrary to, or in- volved an unreasonable application of, clearly established Federal law, as determined by [this] Court.” 28 U. S. C. §2254(d)(1). We hold that Lancaster’s petition does not meet AEDPA’s requirement and that the United States Court of Appeals for the Sixth Circuit erred in granting him federal habeas relief. I On April 23, 1993, Lancaster, a former police officer with a long history of severe mental-health problems, shot and killed his girlfriend in a shopping-plaza parking lot. At his 1994 jury trial in Michigan state court, Lancaster admitted that he had killed his girlfriend but asserted insanity and diminished-capacity defenses. Under then-prevailing Michigan Court of Appeals precedent, a defendant who pleaded diminished capacity, although he was legally sane, could “offer evidence of some mental abnormality to negate the specific intent required to commit a particular crime.” Carpenter, 464 Mich., at 232, 627 N. W. 2d, at 280. If a defendant succeeded in showing that mental illness prevented him from “form[ing] the specific state of mind required as an essential element of a crime,” he could “be convicted only of a lower grade of the offense not requiring that particular mental element.” Ibid. (internal quotation marks omitted). Apparently unpersuaded by Lancaster’s defenses, the jury convicted him of first-degree murder, in violation of Mich. Comp. Laws Ann. §750.316 (West 1991),[1] and possessing a firearm in the commission of a felony, in vio- lation of §750.227b (West Cum. Supp. 2004). Lancaster later obtained federal habeas relief from these convictions, however, because, in conflict with Batson v. Kentucky, 476 U.S. 79 (1986), the prosecutor had exercised a race-based peremptory challenge to remove a potential juror. See Lancaster v. Adams, 324 F.3d 423 (CA6 2003). Lancaster was retried in 2005. By that time, the Michigan Supreme Court had disapproved the “series of [Michigan Court of Appeals] decisions” recognizing the diminished-capacity defense. Carpenter, 464 Mich., at 235, 627 N. W. 2d, at 282. In rejecting the defense, Michigan’s high court observed that, in 1975, the Michigan Legislature had enacted “a comprehensive statutory scheme concerning de- fenses based on either mental illness or mental retardation.” Id., at 236, 627 N. W. 2d, at 282. That scheme, the Michigan Supreme Court concluded, “demonstrate[d] the Legislature’s intent to preclude the use of any evidence of a defendant’s lack of mental capacity short of legal insan- ity to avoid or reduce criminal responsibility.” Ibid. Although the murder with which Lancaster was charged occurred several years before the Michigan Supreme Court’s decision in Carpenter, the judge presiding at Lancaster’s second trial applied Carpenter’s holding and therefore disallowed renewal of Lancaster’s diminished-capacity defense. Following a bench trial, Lancaster was again convicted. The trial court imposed a sentence of life imprisonment for the first-degree murder conviction and a consecutive two-year sentence for the related firearm offense. Lancaster appealed, unsuccessfully, to the Michigan Court of Appeals. See App. to Pet. for Cert. 76a–78a. The appeals court rejected Lancaster’s argument that retro- active application of Carpenter to his case violated his right to due process. “[D]ue process concerns prevent retroactive application [of judicial decisions] in some cases,” the court acknowledged, “especially . . . where the decision is unforeseeable and has the effect of changing existing law.” App. to Pet. for Cert. 77a. But Carpenter “did not involve a change in the law,” the Court of Appeals reasoned, “because it concerned an unambiguous statute that was interpreted by the [Michigan] Supreme Court for the first time.” App. to Pet. for Cert. 77a. After the Michigan Supreme Court declined review, Lancaster reasserted his due process claim in a federal habeas petition filed under 28 U. S. C. §2254. The District Court denied the petition, 735 F. Supp. 2d 750 (ED Mich. 2010), but it granted a certificate of appealability, see 28 U. S. C. §2253(c). A divided panel of the Sixth Circuit reversed. 683 F.3d 740 (2012). The Michigan Supreme Court’s decision in Carpenter was unforeseeable, the Court of Appeals major- ity concluded, given (1) the Michigan Court of Appeals’ consistent recognition of the diminished-capacity defense; (2) the Michigan Supreme Court’s repeated references to the defense without casting a shadow of doubt on it; and (3) the inclusion of the diminished-capacity defense in the Michigan State Bar’s pattern jury instructions. 683 F. 3d, at 745–749. These considerations persuaded the Sixth Circuit majority that, in rejecting Lancaster’s due process claim, the Michigan Court of Appeals had unreasonably applied clearly established federal law. Id., at 752–753. Accordingly, the Sixth Circuit ruled that Lancaster was en- titled to a new trial at which he could present his diminished-capacity defense. Id., at 754. Dissenting, Chief Judge Batchelder concluded that the “Michigan Court of Appeals[’] denial of Lancaster’s due process claim was reasonable . . . because the diminished-capacity defense was not well-established in Michigan and its elimination was, therefore, foreseeable.” Id., at 755. This Court granted certiorari. 568 U. S. ___ (2013). II To obtain federal habeas relief under AEDPA’s strictures, Lancaster must establish that, in rejecting his due process claim, the Michigan Court of Appeals unreason- ably applied federal law clearly established in our decisions. See 28 U. S. C. §2254(d)(1).[2] This standard, we have explained, is “difficult to meet”: To obtain habeas corpus relief from a federal court, a state prisoner must show that the challenged state-court ruling rested on “an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 12–13). To determine whether Lancaster has satisfied that demanding standard, we consider first two of this Court’s key decisions: Bouie v. City of Columbia, 378 U.S. 347 (1964), and Rogers v. Tennessee, 532 U.S. 451 (2001). We then consider whether the Michigan Court of Appeals’ decision qualifies as an unreasonable application of those decisions to the particular circumstances of Lancaster’s case.[3] A In Bouie, the African-American petitioners were convicted of trespass under South Carolina law after they refused to comply with orders to leave a drug store’s restaurant department, a facility reserved for white customers. 378 U. S., at 348–349. This Court held that the convictions violated the due process requirement that “a criminal statute give fair warning of the conduct which it prohibits.” Id., at 350. The state statute under which the petitioners were convicted, the Court emphasized, prohibited “entry upon the lands of another . . . after notice from the owner or tenant prohibiting such entry.” Id., at 349–350 (emphasis added and internal quotation marks omitted). It was undisputed that the petitioners were invited to enter the store and had received no notice that they were barred from the restaurant area before they occupied booth seats. Id., at 350. Nevertheless, the South Carolina Supreme Court affirmed the petitioners’ convictions based on its prior decision in Charleston v. Mitchell, 239 S. C. 376, 123 S.E.2d 512 (1961). Bouie, 378 U. S., at 350, n. 2. The Mitchell decision, which the South Carolina Supreme Court found dispositive, was rendered 21 months after the petitioners’ arrest. 378 U. S., at 348, 350, n. 2. Mitchell held that the trespass statute under which the petitioners were convicted reached not only unauthorized entries; it proscribed as well “the act of remaining on the premises of another after receiving notice to leave.” 378 U. S., at 350. We held that the Due Process Clause prohibited Mitchell’s retroactive application to the Bouie petitioners. In so ruling, we stressed that Mitchell’s interpretation of the South Carolina trespass statute was “clearly at variance with the statutory language” and “ha[d] not the slightest support in prior South Carolina decisions.” 378 U. S., at 356. Due process, we said, does not countenance an “unforeseeable and retroactive judicial expansion of narrow and precise statutory language.” Id., at 352. In Rogers, the petitioner contested the Tennessee Supreme Court’s retroactive abolition of the common-law “year and a day rule.” 532 U. S., at 453. That rule barred a murder conviction “unless [the] victim had died by the defendant’s act within a year and a day of the act.” Ibid. The victim in Rogers had died some 15 months after the petitioner stabbed him. Id., at 454. We held that the Tennessee Supreme Court’s refusal to adhere to the year and a day rule in the petitioner’s case did not violate due process. Id., at 466–467. The “due process limitations on the retroactive application of judicial decisions,” we explained, are not coextensive with the limitations placed on legislatures by the Constitution’s Ex Post Facto Clauses. Id., at 459. See also U. S. Const., Art. I, §9, cl. 3; id., §10, cl. 1; Calder v. Bull, 3 Dall. 386, 390 (1798) (seriatim opinion of Chase, J.) (describing four categories of laws prohibited by the Constitution’s Ex Post Facto Clauses). Strictly applying ex post facto principles to judicial decisionmaking, we recognized, “would place an unworkable and unacceptable restraint on normal judicial processes and would be incompatible with the resolution of uncertainty that marks any evolving legal system.” Rogers, 532 U. S., at 461. “[J]udicial alteration of a common law doctrine of criminal law,” we therefore held, “violates the principle of fair warning, and hence must not be given retroactive effect, only where [the alteration] is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’ ” Id., at 462 (quoting Bouie, 378 U. S., at 354). Judged by this standard, we explained, the retroactive abolition of the year and a day rule encountered no constitutional impediment. First, the rule was “widely viewed as an outdated relic of the common law” and had been “legislatively or judicially abolished in the vast majority of jurisdictions recently to have addressed the issue.” Rogers, 532 U. S., at 462–463. Second, the rule “had only the most tenuous foothold” in Tennessee, having been mentioned in reported Tennessee decisions “only three times, and each time in dicta.” Id., at 464. Abolishing the obsolete rule in Rogers’ case, we were satisfied, was not “the sort of unfair and arbitrary judicial action against which the Due Process Clause aims to protect.” Id., at 466–467. B 1 Does the Michigan Court of Appeals’ rejection of Lan- caster’s due process claim represent an unreasonable ap- plication of the law we declared in Bouie and Rogers? Addressing that question, we first summarize the history of the diminished-capacity defense in Michigan. The Michigan Court of Appeals first recognized the defense in People v. Lynch, 47 Mich. App. 8, 208 N.W.2d 656 (1973). See Carpenter, 464 Mich., at 233, 627 N. W. 2d, at 281. The defendant in Lynch was convicted of first-degree murder for starving her newborn daughter. 47 Mich. App., at 9, 208 N. W. 2d, at 656. On appeal, the defendant challenged the trial court’s exclusion of psychiatric testimony “bearing on [her] state of mind.” Id., at 14, 208 N. W. 2d, at 659. She sought to introduce this evidence not to show she was legally insane at the time of her child’s death.[4] Instead, her plea was that she lacked the mens rea necessary to commit first-degree murder. Ibid. Reversing the defendant’s conviction and remanding for a new trial, the Michigan Court of Appeals rejected the view “that mental capacity is an all or nothing matter and that only insanity . . . negates criminal intent.” Id., at 20, 208 N. W. 2d, at 662. Aligning itself with the “majority . . . view,” the court permitted defendants to present relevant psychiatric “testimony bearing on intent.” Id., at 20–21, 208 N. W. 2d, at 662–663. See also id., at 20, 208 N. W. 2d, at 662 (noting that “such medical proof” is “sometimes called proof of diminished or partial responsibility”). In 1975, two years after the Michigan Court of Appeals’ decision in Lynch, the Michigan Legislature enacted “a com- prehensive statutory scheme setting forth the requirements for and the effects of asserting a defense based on either mental illness or mental retardation.” Carpenter, 464 Mich., at 226, 627 N. W. 2d, at 277. See also 1975 Mich. Pub. Acts pp. 384–388. That legislation, which remained in effect at the time of the April 1993 shooting at issue here, provided that “[a] person is legally insane if, as a result of mental illness . . . or . . . mental retardation . . . that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his con- duct to the requirements of law.” Id., at 386 (codified as amended, Mich. Comp. Laws Ann. §768.21a(1) (West 2000)). The legislature required defendants in felony cases to notify the prosecution and the court at least 30 days before trial of their intent to assert an insanity defense. 1975 Mich. Pub. Acts p. 385 (codified as amended, §768.20a(1)). Defendants raising an insanity defense, the legislature further provided, must submit to a court-ordered psychiatric examination. Id., at 385 (codified as amended, §768.20a(2)). The 1975 Act also introduced the verdict of “guilty but mentally ill” for defendants who suffer from mental illness but do not satisfy the legal definition of insanity. Id., at 387 (codified as amended, §768.36(1) (West Cum. Supp. 2013)). The legislature provided for the psychiatric evaluation and treatment of defendants found “guilty but mentally ill” but did not exempt them from the sentencing provisions applicable to defendants without mental illness. Id., at 387–388 (codified as amended, §§768.36(3)–(4)). Although the 1975 Act did not specifically address the defense of diminished capacity, the Michigan Court of Appeals ruled in 1978 that the defense “comes within th[e] codified definition of legal insanity.” People v. Mangia- pane, 85 Mich. App. 379, 395, 271 N.W.2d 240, 249. Therefore, the court held, a defendant claiming that he lacked the “mental capacity to entertain the specific intent required as an element of the crime with which he [was] charged” had to comply with the statutory procedural requirements applicable to insanity defenses, including the requirements of pretrial notice and submission to court-ordered examination. Ibid. Because the 1975 Act did not indicate which party bears the burden of proof on the issue of insanity, Michigan courts continued to apply the common-law burden-shifting framework in effect at the time of the insanity defense’s codification. See People v. McRunels, 237 Mich. App. 168, 172, 603 N.W.2d 95, 98 (1999). Under that framework, a criminal defendant bore the initial burden of present- ing some evidence of insanity, at which point the burden shifted to the prosecution to prove the defendant’s sanity beyond a reasonable doubt. See In re Certified Question, 425 Mich. 457, 465–466, 390 N.W.2d 620, 623–624 (1986); People v. Savoie, 419 Mich. 118, 126, 349 N.W.2d 139, 143 (1984). The Michigan Court of Appeals applied the same burden-shifting framework to the diminished-capacity defense. See People v. Denton, 138 Mich. App. 568, 571–572, 360 N.W.2d 245, 247–248 (1984). In 1994, however, the Michigan Legislature amended Mich. Comp. Laws Ann. §768.21a, the statute codifying the insanity defense, to provide that the defendant bears “the burden of proving the defense of insanity by a preponderance of the evidence.” 1994 Mich. Pub. Acts p. 252 (codified at §768.21a(3)). In Carpenter, the defendant argued that the trial court had erred by applying the 1994 Act to require him to establish his diminished-capacity defense by a preponderance of the evidence. 464 Mich., at 225–226, 235, 627 N. W. 2d, at 277, 282. Rejecting this contention, the Michigan Court of Appeals affirmed the defendant’s convictions. See People v. Carpenter, No. 204051, 1999 WL 33438799 (July 16, 1999) (per curiam). Consistent with its decision in Mangiapane, the court held that the 1994 statutory amendments applied to defendants raising the diminished-capacity defense, and it further held that requiring defendants to establish their diminished capacity by a preponderance of the evidence did not unconstitutionally relieve the prosecution of its burden to prove the mens rea elements of a crime beyond a reasonable doubt. Id., at *1–*2. In turn, the Michigan Supreme Court also affirmed, but it did so on an entirely different ground. As earlier stated, see supra, at 2–3, the court concluded that in no case could criminal defendants invoke the diminished-capacity defense, for that defense was not encompassed within the “comprehensive statutory scheme” the Michigan Legislature had enacted to govern defenses based on mental illness or retardation. Carpenter, 464 Mich., at 236, 627 N. W. 2d, at 282. Noting that previously it had “acknowledged in passing the concept of the diminished capacity defense,”[5] Michigan’s high court emphasized that it had “never specifically authorized . . . use [of the defense] in Michigan courts.” Id., at 232–233, 627 N. W. 2d, at 281. Squarely addressing the issue for the first time, the court concluded that the diminished-capacity defense was incompatible with the Michigan Legislature’s “conclusiv[e] determin[ation]” of the circumstances under which “mental incapacity can serve as a basis for relieving [a defendant] from criminal responsibility.” Id., at 237, 627 N. W. 2d, at 283. The statutory scheme enacted by the Michigan Legislature, the court held, “created an all or nothing insanity defense.” Ibid. But cf. supra, at 9. A defendant who is “mentally ill or retarded yet not legally insane,” the court explained, “may be found ‘guilty but mentally ill,’ ” but the legislature had foreclosed the use of “evidence of mental incapacity short of insanity . . . to avoid or reduce criminal responsibility by negating specific intent.” 464 Mich., at 237, 627 N. W. 2d, at 283. 2 The Michigan Court of Appeals concluded that applying Carpenter retroactively to Lancaster’s case did not violate due process, for Carpenter “concerned an unambiguous statute that was interpreted by the [Michigan] Supreme Court for the first time.” App. to Pet. for Cert. 77a. As earlier Michigan Court of Appeals decisions indicate, see supra, at 8–10, the bearing of the 1975 legislation on the diminished-capacity defense may not have been apparent pre-Carpenter. But in light of our precedent and the his- tory recounted above, see Part II–B–1, supra, the Michigan Court of Appeals’ decision applying Carpenter retroac- tively does not warrant disapprobation as “an unreasonable application of . . . clearly established [f]ederal law.” 28 U. S. C. §2254(d)(1). This case is a far cry from Bouie, where, unlike Rogers, the Court held that the retroactive application of a judicial decision violated due process. In Bouie, the South Caro- lina Supreme Court had unexpectedly expanded “narrow and precise statutory language” that, as written, did not reach the petitioners’ conduct. 378 U. S., at 352. In Carpenter, by contrast, the Michigan Supreme Court rejected a diminished-capacity defense that the court reasonably found to have no home in a comprehensive, on-point statute enacted by the Michigan Legislature. Carpenter thus presents the inverse of the situation this Court confronted in Bouie. Rather than broadening a statute that was narrow on its face, Carpenter disapproved lower court precedent recognizing a defense Michigan’s high court found, on close inspection, to lack statutory grounding. The situation we confronted in Bouie bears scant resemblance to this case, and our resolution of that controversy hardly makes disallowance of Lancaster’s diminished-capacity defense an unreasonable reading of this Court’s law. On the other hand, as the Sixth Circuit recognized, see 683 F. 3d, at 749–751, Lancaster’s argument against applying Carpenter retroactively is arguably less weak than the argument opposing retroactivity we rejected in Rogers. Unlike the year and a day rule at issue in Rogers, the diminished-capacity defense is not an “outdated relic of the common law” widely rejected by modern courts and legislators. 532 U. S., at 462. To the contrary, the Model Penal Code sets out a version of the defense. See ALI, Model Penal Code §4.02(1), pp. 216–217 (1985) (“Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is an element of the offense.”). See also id., Comment 2, at 219 (“The Institute perceived no justification for a limitation on evidence that may bear significantly on a determination of the mental state of the defendant at the time of the commission of the crime.”). And not long before the 1993 shooting at issue here, the American Bar Association had approved criminal-justice guidelines that (1) favored the admissibility of mental-health evidence offered to ne- gate mens rea, and (2) reported that a majority of States allowed presentation of such evidence in at least some circumstances. See ABA Criminal Justice Mental Health Standards §7–6.2, and Commentary, pp. 347–349, and n. 2 (1989). See also Clark v. Arizona, 548 U.S. 735, 800 (2006) (Kennedy, J., dissenting) (reporting that in 2006, “a substantial majority of the States” permitted the introduction of “mental-illness evidence to negate mens rea”). Furthermore, the year and a day rule was mentioned only three times in dicta in Tennessee reported decisions. Rogers, 532 U. S., at 464. The diminished-capacity defense, by contrast, had been adhered to repeatedly by the Michigan Court of Appeals. See supra, at 8–10. It had also been “ ‘acknowledged in passing’ ” in Michigan Supreme Court decisions and was reflected in the Michigan State Bar’s pattern jury instructions. 683 F. 3d, at 746–749 (quoting Carpenter, 464 Mich., at 232, 627 N. W. 2d, at 281). These considerations, however, are hardly sufficient to warrant federal habeas relief under 28 U. S. C. §2254(d)(1)’s demanding standard. See Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n unreasonable application of federal law is different from an incorrect appli- cation of federal law.”). Rogers did not hold that a newly announced judicial rule may be applied retroactively only if the rule it replaces was an “outdated relic” rarely appearing in a jurisdiction’s case law. 532 U. S., at 462–467. Distinguishing Rogers, a case in which we rejected a due process claim, thus does little to bolster Lancaster’s argument that the Michigan Court of Appeals’ decision unreasonably applied clearly established federal law. See Williams, 529 U. S., at 412 (the phrase “clearly established [f]ederal law” in §2254(d)(1) “refers to the holdings . . . of this Court’s decisions as of the time of the relevant state-court decision” (emphasis added)). This Court has never found a due process violation in circumstances remotely resembling Lancaster’s case—i.e., where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute. Fairminded jurists could conclude that a state supreme court decision of that order is not “unexpected and indefensible by reference to [existing] law.” Rogers, 532 U. S., at 462 (internal quotation marks omitted). Lancaster therefore is not entitled to federal habeas relief on his due process claim. * * * For the reasons stated, the judgment of the Court of Appeals for the Sixth Circuit is Reversed. Notes 1 As relevant here, a homicide constitutes first-degree murder under Mich. Comp. Laws Ann. §750.316 if it is “wil[l]ful, deliberate, and premeditated.” 2 Title 28 U. S. C. §2254(d) provides that where, as here, a state prisoner’s habeas claim “was adjudicated on the merits in State court,” a federal court may not grant relief with respect to that claim unless the state court’s adjudication of the claim (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Lancaster does not allege that the Michigan Court of Appeals’ decision “was based on an unreasonable determination of the facts” in his case, nor does he develop any ar-gument that the state court’s decision was “contrary to” this Court’s precedents. See Williams v. Taylor, 529 U.S. 362, 412–413 (2000) (a state-court decision is “contrary to” clearly established federal law if “the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts”). The only question in this case, therefore, is whether the Michigan Court of Appeals unreasonably applied “clearly established [f]ederal law, as determined by [this] Court.” 28 U. S. C. §2254(d)(1). 3 Lancaster does not argue that the Michigan Supreme Court’s rejection of the diminished-capacity defense in People v. Carpenter, 464 Mich. 223, 627 N.W.2d 276 (2001), if applied only prospectively to defendants whose alleged offenses were committed after the decision was issued, would violate any constitutional provision. See Clark v. Arizona, 548 U.S. 735, 756–779 (2006) (rejecting due process challenge to Arizona’s restrictions on mental-disease and capacity evidence offered to negate mens rea). We therefore address only whether the Michigan Court of Appeals unreasonably applied clearly established federal law in upholding Carpenter’s retroactive application to Lancaster’s case. 4 At the time of Lynch, Michigan courts used a two-part test for insanity derived from the Michigan Supreme Court’s decision in People v. Durfee, 62 Mich. 487, 494, 29 N.W. 109, 112 (1886). The Durfee test asked “1) whether defendant knew what he was doing was right or wrong; and 2) if he did, did he have the power, the will power, to resist doing the wrongful act?” People v. Martin, 386 Mich. 407, 418, 192 N.W.2d 215, 220 (1971). See also Carpenter, 464 Mich., at 234, n. 7, 627 N. W. 2d, at 281, n. 7. 5 Carpenter cited three decisions in which the Michigan Supreme Court had previously mentioned the diminished-capacity defense: (1) People v. Lloyd, 459 Mich. 433, 450, 590 N.W.2d 738, 745 (1999) (per curiam), which held that defense counsel was not constitutionally ineffective in presenting a diminished-capacity defense rather than an insanity defense; (2) People v. Pickens, 446 Mich. 298, 329–331, 521 N.W.2d 797, 811–812 (1994), which rejected a defendant’s claim that his attorney rendered ineffective assistance by failing to pursue a diminished-capacity defense; and (3) People v. Griffin, 433 Mich. 860, 444 N.W.2d 139, 140 (1989) (per curiam), a summary order remanding a case to the trial court for a hearing on the defendant’s claim that the defendant’s attorney was ineffective “for failing to explore defenses of diminished capacity and insanity.” See Carpenter, 464 Mich., at 232–233, 627 N. W. 2d, at 281. See also 683 F.3d 740, 746–749, 751 (CA6 2012) (describing additional Michigan Supreme Court decisions that mention the diminished-capacity defense, but acknowledging that the Michigan Supreme Court “did not squarely address the validity of the defense until” its 2001 decision in Carpenter); App. to Brief for Respondent A–1, A–3 to A–4 (citing eight pre-Carpenter Michigan Supreme Court decisions mentioning the diminished-capacity defense).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus METRISH, WARDEN v. LANCASTER certiorari to the united states court of appeals for the sixth circuit No. 12–547. Argued April 24, 2013—Decided May 20, 2013 On April 23, 1993, respondent Burt Lancaster, a former police officer with a long history of severe mental-health problems, shot and killed his girlfriend. At his 1994 jury trial in Michigan state court, Lancaster asserted a defense of diminished capacity. Under then-prevailing Michigan Court of Appeals precedent, the diminished-capacity defense permitted a legally sane defendant to present evidence of mental illness to negate the specific intent required to commit a particular crime. Apparently unpersuaded by Lancaster’s defense, the jury convicted him of first-degree murder and a related firearm offense. Lancaster, however, later obtained federal habeas relief from these convictions. By the time of Lancaster’s retrial, the Michigan Supreme Court had rejected the diminished-capacity defense in its 2001 decision in Carpenter. Although the murder with which Lancaster was charged occurred several years before Carpenter was decided, the judge at his second trial applied Carpenter and therefore disallowed renewal of his diminished-capacity defense. Lancaster was again convicted. Affirming, the Michigan Court of Appeals rejected Lancaster’s argument that the trial court’s retroactive application of Carpenter vio- lated due process. Lancaster reasserted his due process claim in a federal habeas petition. The District Court denied the petition, but the Sixth Circuit reversed. Concluding that the Michigan Supreme Court’s 2001 rejection of the diminished-capacity defense was unforeseeable in April 1993, when Lancaster killed his girlfriend, the Sixth Circuit held that, by rejecting Lancaster’s due process claim, the Michigan Court of Appeals had unreasonably applied clearly established federal law. Held: Lancaster is not entitled to federal habeas relief. . (a) Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Lancaster may obtain federal habeas relief only if the Michigan Court of Appeals, in rejecting his due process claim, unreasonably applied “clearly established Federal law, as determined by [this] Court.” 28 U. S. C. §2254(d)(1). This standard is “difficult to meet”: Lancaster must show that the Michigan Court of Appeals’ decision rested on “an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U. S. ___, ___. To determine whether Lancaster has satisfied that demanding standard, the Court first considers two key decisions: Bouie v. City of Columbia, 378 U.S. 347, and Rogers v. Tennessee, 532 U.S. 451. It then considers whether the Michigan Court of Appeals’ decision qualifies as an unreasonable application of those decisions to Lancaster’s case. . (b) Bouie concerned African-American petitioners who had refused to leave a South Carolina drug store’s whites-only restaurant area after entering without notice that the store’s policy barred their entry. They were convicted under a South Carolina trespass statute pro- hibiting “ ‘entry upon the lands of another . . . after notice from the owner or tenant prohibiting such entry.’ ” 378 U. S., at 349–350. The South Carolina Supreme Court based its affirmance of the petitioners’ convictions on its prior decision in Mitchell, where the court held that the trespass statute reached both unauthorized entries and “the act of remaining on the premises of another after receiving notice to leave.” 378 U. S., at 350. Mitchell, however, was rendered 21 months after the petitioners’ arrest. This Court held that the Due Process Clause prohibited Mitchell’s retroactive application to the Bouie petitioners, stressing that Mitchell’s interpretation of the state trespass statute was “clearly at variance with the statutory language” and “ha[d] not the slightest support in prior South Carolina decisions.” 378 U. S., at 356. In Rogers, the petitioner contested the Tennessee Supreme Court’s retroactive abolition of the common-law “year and a day rule,” which barred a murder conviction “unless [the] victim had died by the defendant’s act within a year and a day of the act.” 532 U. S., at 453. This Court found no due process violation. “[J]udicial alteration of a common law doctrine of criminal law,” the Court held, “violates the principle of fair warning, and hence must not be given retroactive effect, only where [the alteration] is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’ ” Id., at 462. Judged by this standard, the retroactive abolition of the year and a day rule encountered no constitutional impediment. The rule was “widely viewed as an outdated relic of the common law,” had been routinely rejected by modern courts and legislators, and had been mentioned in reported Tennessee decisions “only three times, and each time in dicta.” Id., at 462–464. . (c) The Michigan Court of Appeals’ rejection of Lancaster’s due process claim does not represent an unreasonable application of the law this Court declared in Bouie and Rogers. . (1) The Michigan Court of Appeals first recognized the diminished-capacity defense in 1973. Two years later, the Michigan Legislature prescribed comprehensive requirements for defenses based on mental illness or retardation. In 1978, the Michigan Court of Appeals ruled that the diminished-capacity defense fit within the codified definition of insanity. The Michigan Supreme Court’s 2001 decision in Carpenter, however, rejected that position, holding that the diminished-capacity defense was not encompassed within the Michigan Legislature’s comprehensive scheme for mental-illness defenses and thus could not be invoked by criminal defendants. . (2) In light of this Court’s precedent and the history of Michigan’s diminished-capacity defense, the Michigan Court of Appeals’ decision applying Carpenter retroactively is not “an unreasonable application of . . . clearly established [f]ederal law.” 28 U. S. C. §2254(d)(1). This case is a far cry from Bouie, where the South Carolina Supreme Court unexpectedly expanded “narrow and precise statutory language” that, as written, did not reach the petitioners’ conduct. 378 U. S., at 352. In Carpenter, by contrast, the Michigan Supreme Court rejected a diminished-capacity defense that the court reasonably found to have no home in a comprehensive, on-point statute enacted by the Michigan Legislature. Although Lancaster’s due process claim is arguably less weak than the due process claim rejected in Rogers, the Court did not hold in Rogers that a newly announced judicial rule may be applied retroactively only if the rule it replaces was an “outdated relic” rarely appearing in a jurisdiction’s case law. 532 U. S., at 462–467. Distinguishing Rogers thus does little to bolster Lancaster’s argument that the Michigan Court of Appeals’ decision unreasonably applied clearly established federal law. This Court has never found a due process violation in circumstances remotely resembling Lancaster’s case—i.e., where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute. Fairminded jurists could conclude that a state supreme court decision of that order is not “ ‘unexpected and indefensible by reference to [existing] law.’ ” Id., at 462. . 683 F.3d 740, reversed. Ginsburg, J., delivered the opinion for a unanimous Court.

In 1993, Burt Lancaster was convicted in a Michigan state court of first-degree murder and a related firearm offense. At the time the crime was committed, Michigan's intermediate appellate court had repeatedly recognized the diminished-capacity defense as a defense negating the mens rea element. However, in 1975, the Michigan Legislature enacted a comprehensive statutory scheme under which petitioners were convicted and the State Supreme Court affirmed, rejecting the defense and, in addition to recognizing the defense, rejected the defense in People v. Carpenter, 464 Mich. 223, 627 N.W.2d 276. Following Lancaster's trial and conviction, however, the state Supreme Court rejected his application to federal habeas corpus relief under 28 U. S. C. §2254(d)(1), which requires a federal court to assess a claim for relief under the demanding standard set by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The Court of Appeals reversed, ruling that, in rejecting Lancaster's due process claim, the court had unreasonably applied clearly established federal law. Held: The Michigan court of appeals erred in applying the "clearly established [federal] law, as determined by [this] Court." (i.e., the standard set forth in Bouie v. City of Columbia, 378 U.S. 347, 1964), and Rogers v. Tennessee, 532 451, to the particular circumstances of his case. . (a) To obtain federal relief under AEDPA, a state prisoner must show that the challenged state-court ruling rested on an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. Bouie, supra; Rogers, supra, at 462. Pp. 466. (b) The Michigan courts used a two-part test for insanity derived from the Michigan Supreme Court decision, which held that, if a defendant knew what he was doing was right or wrong, and if he did not, he had the power, the will power, to resist doing the wrongful act, to avoid or reduce criminal responsibility by negating specific intent. This test encountered no constitutional impediment. First, the rule was widely regarded as an outdated relic of the common law, and had been widely abolished in the vast majority of jurisdictions recently to have addressed the issue. Second, the test had only the most tenuous foothold in Tennessee, having been mentioned in reported Tennessee decisions only three times and each time in dicta. Third, this Court has never found a due process violation in circumstances remotely resembling Lancaster's case, where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court's reasonable interpretation of the language of a controlling statute. Cf., e.g., Bouie; Rogers; 532 U. s. 662... n. 7. Here, the fact that the 1975 legislation on the diminished capacity defense was mentioned in Tennessee decisions does little to bolster Lancaster's argument that the Michigan Court of Appeals' decision, in which the court previously mentioned the defense as having no home in a comprehensive, on-point statute enacted by the State Legislature, was unreasonable. In light of this Court's precedent and the his- tory recounted above, the decision applying Carpenter retroac- tively does not warrant disapprobation as an unreasonable application of state law. Moreover, this case is a far cry from Bouie where, unlike Rogers, the Court held that the retroactive application of a judicial decision violated due process, and Bouie presents the inverse of the situation this Court confronted here. Rather than broadening a statute that was narrow on its face, Carpenter disapproved lower court precedent on the ground that it disapproved a Michigan statute, and, if it were, it was a premeditated, premedication of federal law unless the adjudication was contrary to, or resulted in a contrary adjudication of, clearly established law.. 681 F.3d 740, reversed. For the reasons stated, see, e. g., 683 F. 3d 423. Although, in the context of Bouie and Rogers, a case in which this Court rejected a due- process claim based on an unreasonable determination of the facts, the courts below did not err in applying a clearly established standard in upholding Carpenter. Thus, in this case, unlike Bouie or Rogers, where the retroactivity of the judicial decision did not violate the due process requirement, the application of the Michigan court to Lancaster did not meet that standard, and therefore was not unreasonable. Cf. Rogers; supra, 466-467. The fact that, at the time of the 1975 decision, the Federal Model Penal Law, which had been passed repeatedly by the Michigan courts, had been affirmed by the highest court of Tennessee, is hardly sufficient to warrant federal

2012_11-10362

https://www.oyez.org/cases/2012/11-10362

. Petitioner Kim Millbrook, a prisoner in the custody of the Federal Bureau of Prisons (BOP), alleges that correctional officers sexually assaulted and verbally threatened him while he was in their custody. Millbrook filed suit in Federal District Court under the Federal Tort Claims Act, 28 U. S. C. §§1346(b), 2671–2680 (FTCA or Act), which waives the Government’s sovereign immunity from tort suits, including those based on certain intentional torts committed by federal law enforcement officers, §2680(h). The District Court dismissed Millbrook’s action, and the Court of Appeals affirmed. The Court of Appeals held that, while the FTCA waives the United States’ sovereign immunity for certain intentional torts by law enforcement officers, it only does so when the tortious conduct occurs in the course of executing a search, seizing evidence, or making an arrest. Petitioner contends that the FTCA’s waiver is not so limited. We agree and reverse the judgment of the Court of Appeals.[1] I A The FTCA “was designed primarily to remove the sovereign immunity of the United States from suits in tort.” Levin v. United States, 568 U. S. ___, ___ (2013) (slip op., at 2) (internal quotation marks omitted). The Act gives federal district courts exclusive jurisdiction over claims against the United States for “injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission” of a federal employee “acting within the scope of his office or employment.” 28 U. S. C. §1346(b)(1). This broad waiver of sovereign immunity is subject to a number of exceptions set forth in §2680. One such exception, relating to intentional torts, preserves the Government’s immunity from suit for “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” §2680(h). We have referred to §2680(h) as the “intentional tort exception.” Levin, supra, at ___ (slip op., at 2) (internal quotation marks omitted). In 1974, Congress carved out an exception to §2680(h)’s preservation of the United States’ sovereign immunity for intentional torts by adding a proviso covering claims that arise out of the wrongful conduct of law enforcement officers. See Act of Mar. 16, 1974, Pub. L. 93–253, §2, 88Stat. 50. Known as the “law enforcement proviso,” this provision extends the waiver of sovereign immunity to claims for six intentional torts, including assault and battery, that are based on the “acts or omissions of investigative or law enforcement officers.” §2680(h). The proviso defines “ ‘investigative or law enforcement officer’ ” to mean “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” Ibid. B On January 18, 2011, Millbrook filed suit against the United States under the FTCA, asserting claims of negligence, assault, and battery. In his complaint, Millbrook alleged that, on March 5, 2010, he was forced to per- form oral sex on a BOP correctional officer, while another officer held him in a choke hold and a third officer stood watch nearby. Millbrook claimed that the officers threatened to kill him if he did not comply with their demands. Millbrook alleged that he suffered physical injuries as a result of the incident and, accordingly, sought compensatory damages. The Government argued that the FTCA did not waive the United States’ sovereign immunity from suit on Millbrook’s intentional tort claims, because they fell within the intentional tort exception in §2680(h). The Government contended that §2680(h)’s law enforcement proviso did not save Millbrook’s claims because of the Third Circuit’s binding precedent in Pooler v. United States, 787 F.2d 868 (1986), which interpreted the proviso to apply only to tortious conduct that occurred during the course of “executing a search, seizing evidence, or making an ar- rest.” Id., at 872. The District Court agreed and granted summary judgment for the United States because the alleged conduct “did not take place during an arrest, search, or seizure of evidence.” Civ. Action No. 3:11–cv–00131 (MD Pa., Feb. 16, 2012), App. 96.[2] The Third Circuit affirmed. 477 Fed. Appx. 4, 5–6 (2012) (per curiam). We granted certiorari, 567 U. S. ___ (2012), to resolve a Circuit split concerning the circumstances under which intentionally tortious conduct by law enforcement officers can give rise to an actionable claim under the FTCA. Compare Pooler, supra; and Orsay v. United States Dept. of Justice, 289 F.3d 1125, 1136 (CA9 2002) (law enforcement proviso “reaches only those claims asserting that the tort occurred in the course of investigative or law enforcement activities” (emphasis added)); with Ignacio v. United States, 674 F.3d 252, 256 (CA4 2012) (holding that the law enforcement proviso “waives immunity whenever an investigative or law enforcement officer commits one of the specified intentional torts, regardless of whether the officer is engaged in investigative or law enforcement activity” (emphasis added)). II The FTCA waives the United States’ sovereign immu- nity for certain intentional torts committed by law enforcement officers. The portion of the Act relevant here provides: “The provisions of this chapter and section 1346(b) of this title shall not apply to— . . . . . “(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” 28 U. S. C. §2680(h). On its face, the law enforcement proviso applies where a claim both arises out of one of the proviso’s six intentional torts, and is related to the “acts or omissions” of an “investigative or law enforcement officer.” The proviso’s cross-reference to §1346(b) incorporates an additional requirement that the acts or omissions giving rise to the claim occur while the officer is “acting within the scope of his office or employment.” §1346(b)(1). The question in this case is whether the FTCA further limits the category of “acts or omissions” that trigger the United States’ liability.[3] The plain language of the law enforcement proviso answers when a law enforcement officer’s “acts or omissions” may give rise to an actionable tort claim under the FTCA. The proviso specifies that the conduct must arise from one of the six enumerated intentional torts and, by expressly cross-referencing §1346(b), indicates that the law enforcement officer’s “acts or omissions” must fall “within the scope of his office or employment.” §§2680(h), 1346(b)(1). Nothing in the text further qualifies the category of “acts or omissions” that may trigger FTCA liability. A number of lower courts have nevertheless read into the text additional limitations designed to narrow the scope of the law enforcement proviso. The Ninth Circuit, for instance, held that the law enforcement proviso does not apply unless the tort was “committed in the course of investigative or law enforcement activities.” Orsay, supra, at 1135. As noted, the Third Circuit construed the law enforcement proviso even more narrowly in holding that it applies only to tortious conduct by federal officers during the course of “executing a search, seizing evidence, or making an arrest.” Pooler, 787 F. 2d, at 872. Court-appointed amicus curiae (Amicus) similarly asks us to construe the proviso to waive “sovereign immunity only for torts committed by federal officers acting in their capacity as ‘investigative or law enforcement officers.’ ” Brief for Amicus 5. Under this approach, the conduct of federal officers would be actionable only when it “aris[es] out of searches, seizures of evidence, arrests, and closely related exercises of investigative or law-enforcement authority.” Ibid. None of these interpretations finds any support in the text of the statute. The FTCA’s only reference to “searches,” “seiz[ures of] evidence,” and “arrests” is found in the statutory definition of “investigative or law enforcement officer.” §2680(h) (defining “ ‘investigative or law enforcement officer’ ” to mean any federal officer who is “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law”). By its terms, this provision focuses on the status of persons whose conduct may be actionable, not the types of activities that may give rise to a tort claim against the United States. The proviso thus distinguishes between the acts for which immunity is waived (e.g., assault and battery), and the class of persons whose acts may give rise to an actionable FTCA claim. The plain text confirms that Congress intended immunity determinations to depend on a federal officer’s legal authority, not on a particular exercise of that authority. Consequently, there is no basis for concluding that a law enforcement officer’s intentional tort must oc- cur in the course of executing a search, seizing evidence, or making an arrest in order to subject the United States to liability. Nor does the text of the proviso provide any indication that the officer must be engaged in “investigative or law enforcement activity.” Indeed, the text never uses the term. Amicus contends that we should read the reference to “investigative or law-enforcement officer” as implicitly limiting the proviso to claims arising from actions taken in an officer’s investigative or law enforcement capacity. But there is no basis for so limiting the term when Congress has spoken directly to the circumstances in which a law enforcement officer’s conduct may expose the United States to tort liability. Under the proviso, an intentional tort is not actionable unless it occurs while the law enforcement officer is “acting within the scope of his office or employment.” §§2680(h), 1346(b)(1). Had Congress intended to further narrow the scope of the proviso, Congress could have limited it to claims arising from “acts or omissions of investigative or law enforcement officers acting in a law enforcement or investigative capacity.” See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 227 (2008). Congress adopted similar limitations in neighboring provisions, see §2680(a) (referring to “[a]ny claim based upon an act or omission of an employee of the Government . . . in the execution of a statute or regulation” (emphasis added)), but did not do so here. We, therefore, decline to read such a limitation into unambiguous text. Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (“[W]hen the statutory language is plain, we must enforce it according to its terms”); Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (“The inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent” (internal quotation marks omitted)). * * * We hold that the waiver effected by the law enforcement proviso extends to acts or omissions of law enforcement officers that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest. Accord- ingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 Because no party defends the judgment, we appointed Jeffrey S. Bucholtz to brief and argue this case, as amicus curiae, in support of the judgment below. 568 U. S. ___ (2012). Amicus Bucholtz has ably discharged his assigned responsibilities, and the Court thanks him for his well-stated arguments. 2 The District Court also concluded that Millbrook failed to state an actionable negligence claim because “it is clear that the alleged assault and battery was intentional.” App. 96. This issue is not before us. 3 The Government conceded in the proceedings below that the correctional officer whose alleged conduct is at issue was acting within the scope of his employment and that the named correctional officers qualify as “investigative or law enforcement officers” within the meaning of the FTCA. App. 54–55, 84–85; Brief for United States 30. Accordingly, we express no opinion on either of these issues.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MILLBROOK v. UNITED STATES certiorari to the united states court of appeals for the third circuit No. 11–10362. Argued February 19, 2013—Decided March 27, 2013 The Federal Tort Claims Act (FTCA) waives the Government’s sovereign immunity from tort suits, but excepts from that waiver certain intentional torts, 28 U. S. C. §2680(h). Section §2680(h), in turn, contains a proviso that extends the waiver of immunity to claims for six intentional torts, including assault and battery, that are based on the “acts or omissions” of an “investigative or law enforcement officer” i.e., a federal officer “who is empowered by law to execute searches, to seize evidence, or to make arrests.” Petitioner Millbrook, a federal prisoner, sued the United States under the FTCA, alleging, inter alia, assault and battery by correctional officers. The District Court granted the Government summary judgment, and the Third Circuit affirmed, hewing to its precedent that the “law enforcement proviso” applies only to tortious conduct that occurs during the course of executing a search, seizing evidence, or making an arrest. Held: The law enforcement proviso extends to law enforcement officers’ acts or omissions that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest. The proviso’s plain language supports this conclusion. On its face, the proviso applies where a claim arises out of one of six intentional torts and is related to the “acts or omissions” of an “investigative or law enforcement officer.” §2680(h). And by cross-referencing §1346(b), the proviso incorporates an additional requirement that the “acts or omissions” occur while the officer is “acting within the scope of his office or employment.” §1346(b)(1). Nothing in §2680(h)’s text supports further limiting the proviso to conduct arising out of searches, seizures of evidence, or arrests. The FTCA’s only reference to those terms is in §2680(h)’s definition of “investigative or law enforcement officer,” which focuses on the status of persons whose conduct may be actionable, not the types of activities that may give rise to a claim. This confirms that Congress intended immunity determinations to depend on a federal officer’s legal author-ity, not on a particular exercise of that authority. Nor does the pro-viso indicate that a waiver of immunity requires the officer to be engaged in investigative or law enforcement activity. The text never uses those terms. Had Congress intended to further narrow the waiver’s scope, it could have used language to that effect. See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 227. Pp. 4−8. 477 Fed. Appx. 4, reversed and remanded. Thomas, J., delivered the opinion for a unanimous Court.

The Federal Tort Claims Act (FTCA or Act) waives the United States' sovereign immunity from tort suits, including those based on certain intentional torts committed by federal law enforcement officers, §2680(h). In January, 2011, petitioner Millbrook, a federal prisoner in the custody of the Federal Bureau of Prisons (BOP), filed suit against the Government under the FTCA, alleging that, on March 5, 2010, he was forced to per form oral sex on a BOP correctional officer, while another officer held him in a choke hold and a third officer stood watch nearby. Millbrook alleged that the officers threatened to kill him if he did not comply with their demands. He sought compensatory damages. The District Court dismissed the action, and the Court of Appeals affirmed. Held: The waiver effected by the law enforcement proviso extends to acts or omissions of federal officers that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity or are executing a search, seizing evidence, or making an arrest. . (a) The plain language of the statute answers when a law enforcement officer may give rise to an actionable tort claim, specifying that the conduct must arise from one of the proviso's enumerated intentional torts and, by expressly cross-referencing §1346(b), indicating that the officer must fall within the term of his office. Nothing in the text further qualifies the category of "acts... omissions" that may trigger FTCA liability. Moreover, a number of lower courts have read into the statute additional limitations designed to narrow the scope. Pp. 462 U.S. 675-672. (b) The Government conceded in the proceedings below that the correctional officer whose alleged conduct is at issue was acting within the meaning of his employment, and that the named correctional officers qualify as investment or enforcement officers. However, the Government conceded that Millbrook failed to state an actionability negligence claim because it was clear that the alleged assault and battery was intentional. This issue is not before this Court, and this Court declines to read such limitation into unambiguous text. Jimenez v. Quarterman, 555 U. S. 113, 118. See Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450. Accordingly, the Court will not construe the waiver to waive sovereign immunity only for torts by federal officers acting in their capacity as investigatory officers, but only when the tortious conduct occurs in the course of executing searches or seizing evidence. Accord- ingly, this Court will order the case remanded for further proceedings consistent with this opinion. 787 F.2d 868, reversed and remanded. REHNQUIST, J., announced the Court's appointment to brief and argue the case, as amicus curiae, in support of the judgment below. BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., filed an opinion concurring in the judgment, post, p..

2012_11-1425

https://www.oyez.org/cases/2012/11-1425

with respect to Parts I, II–A, II–B, and IV, and an opinion with respect to Parts II–C and III, in which Justice Scalia, Justice Ginsburg, and Justice Kagan join. In Schmerber v. California, 384 U.S. 757 (1966), this Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” Id., at 770 (internal quotation marks omitted). The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances. I While on highway patrol at approximately 2:08 a.m., a Missouri police officer stopped Tyler McNeely’s truck after observing it exceed the posted speed limit and repeatedly cross the centerline. The officer noticed several signs that McNeely was intoxicated, including McNeely’s bloodshot eyes, his slurred speech, and the smell of alcohol on his breath. McNeely acknowledged to the officer that he had consumed “a couple of beers” at a bar, App. 20, and he appeared unsteady on his feet when he exited the truck. After McNeely performed poorly on a battery of field-sobriety tests and declined to use a portable breath-test device to measure his blood alcohol concentration (BAC), the officer placed him under arrest. The officer began to transport McNeely to the station house. But when McNeely indicated that he would again refuse to provide a breath sample, the officer changed course and took McNeely to a nearby hospital for blood testing. The officer did not attempt to secure a warrant. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntar- ily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution. See Mo. Ann. Stat. §§577.020.1, 577.041 (West 2011). McNeely nonetheless refused. The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely’s BAC at 0.154 percent, which was well above the legal limit of 0.08 percent. See §577.012.1. McNeely was charged with driving while intoxicated (DWI), in violation of §577.010.[1] He moved to suppress the results of the blood test, arguing in relevant part that, under the circumstances, taking his blood for chemi- cal testing without first obtaining a search warrant vio- lated his rights under the Fourth Amendment. The trial court agreed. It concluded that the exigency exception to the warrant requirement did not apply because, apart from the fact that “[a]s in all cases involving intoxication, [McNeely’s] blood alcohol was being metabolized by his liver,” there were no circumstances suggesting the officer faced an emergency in which he could not practicably obtain a warrant. No. 10CG–CR01849–01 (Cir. Ct. Cape Giradeau Cty., Mo., Div. II, Mar. 3, 2011), App. to Pet. for Cert. 43a. On appeal, the Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court. No. ED 96402 (June 21, 2011), id., at 24a. The Missouri Supreme Court affirmed. 358 S.W.3d 65 (2012) (per curiam). Recognizing that this Court’s decision in Schmerber v. California, 384 U.S. 757, “provide[d] the backdrop” to its analysis, the Missouri Supreme Court held that “Schmerber directs lower courts to engage in a totality of the circumstances analysis when determin- ing whether exigency permits a nonconsensual, warrantless blood draw.” 358 S. W. 3d, at 69, 74. The court further concluded that Schmerber “requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.” 358 S. W. 3d, at 70. According to the court, exigency depends heavily on the existence of additional “ ‘special facts,’ ” such as whether an officer was delayed by the need to investigate an ac- cident and transport an injured suspect to the hospital, as had been the case in Schmerber. 358 S. W. 3d, at 70, 74. Finding that this was “unquestionably a routine DWI case” in which no factors other than the natural dissi- pation of blood-alcohol suggested that there was an emergency, the court held that the nonconsensual warrantless blood draw violated McNeely’s Fourth Amendment right to be free from unreasonable searches of his person. Id., at 74–75. We granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.[2] See 567 U. S. ___ (2012). We now affirm. II A The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception. See, e.g., United States v. Robinson, 414 U.S. 218, 224 (1973). That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U.S. 753, 760 (1985); see also Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616 (1989). We first considered the Fourth Amendment restrictions on such searches in Schmerber, where, as in this case, a blood sample was drawn from a defendant suspected of driving while under the influence of alcohol. 384 U. S., at 758. Noting that “[s]earch warrants are ordinarily required for searches of dwellings,” we reasoned that “absent an emergency, no less could be required where intrusions into the human body are concerned,” even when the search was conducted following a lawful arrest. Id., at 770. We explained that the importance of requiring authorization by a “ ‘neutral and detached magistrate’ ” before allowing a law enforcement officer to “invade another’s body in search of evidence of guilt is indisputable and great.” Ibid. (quoting Johnson v. United States, 333 U.S. 10, 13–14 (1948)). As noted, the warrant requirement is subject to ex- ceptions. “One well-recognized exception,” and the one at issue in this case, “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 6) (internal quotation marks and brackets omitted). A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement’s need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U.S. 45, 47–48 (2009) (per curiam), engage in “hot pursuit” of a fleeing suspect, United States v. San- tana, 427 U.S. 38, 42–43 (1976), or enter a burning building to put out a fire and investigate its cause, Michigan v. Tyler, 436 U.S. 499, 509–510 (1978). As is relevant here, we have also recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence. See Cupp v. Murphy, 412 U.S. 291, 296 (1973); Ker v. California, 374 U.S. 23, 40–41 (1963) (plurality opinion). While these contexts do not necessarily involve equiva- lent dangers, in each a warrantless search is potentially reasonable because “there is compelling need for official action and no time to secure a warrant.” Tyler, 436 U. S., at 509. To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances. See Brigham City v. Stuart, 547 U.S. 398, 406 (2006) (finding officers’ entry into a home to provide emergency assistance “plainly reasonable under the circumstances”); Illinois v. Mc- Arthur, 531 U.S. 326, 331 (2001) (concluding that a warrantless seizure of a person to prevent him from returning to his trailer to destroy hidden contraband was reasonable “[i]n the circumstances of the case before us” due to exigency); Cupp, 412 U. S., at 296 (holding that a limited warrantless search of a suspect’s fingernails to preserve evidence that the suspect was trying to rub off was justified “[o]n the facts of this case”); see also Richards v. Wisconsin, 520 U.S. 385, 391–396 (1997) (rejecting a per se exception to the knock-and-announce requirement for felony drug investigations based on presumed exigency, and requiring instead evaluation of police conduct “in a particular case”). We apply this “finely tuned approach” to Fourth Amendment reasonableness in this context be- cause the police action at issue lacks “the traditional justification that . . . a warrant . . . provides.” Atwater v. Lago Vista, 532 U.S. 318, 347, n. 16 (2001). Absent that established justification, “the fact-specific nature of the reasonableness inquiry,” Ohio v. Robinette, 519 U.S. 33, 39 (1996), demands that we evaluate each case of alleged exigency based “on its own facts and circumstances.” Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931).[3] Our decision in Schmerber applied this totality of the circumstances approach. In that case, the petitioner had suffered injuries in an automobile accident and was taken to the hospital. 384 U. S., at 758. While he was there receiving treatment, a police officer arrested the petitioner for driving while under the influence of alcohol and ordered a blood test over his objection. Id., at 758–759. After explaining that the warrant requirement applied generally to searches that intrude into the human body, we concluded that the warrantless blood test “in the present case” was nonetheless permissible because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’ ” Id., at 770 (quoting Preston v. United States, 376 U.S. 364, 367 (1964)). In support of that conclusion, we observed that evidence could have been lost because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” 384 U. S., at 770. We added that “[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.” Id., at 770–771. “Given these special facts,” we found that it was appropriate for the police to act without a warrant. Id., at 771. We further held that the blood test at issue was a reasonable way to recover the evidence because it was highly effective, “involve[d] vir- tually no risk, trauma, or pain,” and was conducted in a reasonable fashion “by a physician in a hospital environment according to accepted medical practices.” Ibid. And in conclusion, we noted that our judgment that there had been no Fourth Amendment violation was strictly based “on the facts of the present record.” Id., at 772. Thus, our analysis in Schmerber fits comfortably within our case law applying the exigent circumstances exception. In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts. B The State properly recognizes that the reasonableness of a warrantless search under the exigency exception to the warrant requirement must be evaluated based on the totality of the circumstances. Brief for Petitioner 28–29. But the State nevertheless seeks a per se rule for blood testing in drunk-driving cases. The State contends that whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent. As a result, the State claims that so long as the officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant. It is true that as a result of the human body’s natural metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. See Skinner, 489 U. S., at 623; Schmerber, 384 U. S., at 770–771. Testimony before the trial court in this case indicated that the percentage of alcohol in an individual’s blood typically decreases by approximately 0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed. App. 47. More precise calculations of the rate at which alcohol dissipates depend on various individual characteristics (such as weight, gender, and alcohol tolerance) and the circumstances in which the alcohol was consumed. See Stripp, Forensic and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 437–441 (L. Kobilinsky ed. 2012). Regardless of the exact elimination rate, it is sufficient for our purposes to note that because an individual’s alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results. This fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence. 384 U. S., at 770–771. But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.S. 451, 456 (1948) (“We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made [the search] imperative”). We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect. Richards, 520 U. S., at 393. The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a “ ‘now or never’ ” situation. Roaden v. Kentucky, 413 U.S. 496, 505 (1973). In contrast to, for example, circumstances in which the suspect has control over easily disposable evidence, see Georgia v. Randolph, 547 U.S. 103, 116, n. 6 (2006); Cupp, 412 U. S., at 296, BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant. See State v. Shriner, 751 N.W.2d 538, 554 (Minn. 2008) (Meyer, J., dissenting). This reality undermines the force of the State’s contention, endorsed by the dissent, see post, at 3 (opinion of Thomas, J.), that we should recognize a categorical exception to the warrant requirement because BAC evidence “is actively being destroyed with every minute that passes.” Brief for Petitioner 27. Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement. The State’s proposed per se rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based on sworn testimony communicated by telephone. See 91Stat. 319. As amended, the law now allows a federal magistrate judge to con- sider “information communicated by telephone or other reliable electronic means.” Fed. Rule Crim. Proc. 4.1. States have also innovated. Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.[4] And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications for drunk-driving investigations.[5] We by no means claim that telecommunications inno- vations have, will, or should eliminate all delay from the warrant-application process. Warrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. Telephonic and electronic warrants may still require officers to follow time-consuming formalities designed to create an adequate record, such as preparing a duplicate warrant before calling the magistrate judge. See Fed. Rule Crim. Proc. 4.1(b)(3). And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest. But technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion, are relevant to an assessment of exigency. That is particularly so in this context, where BAC evidence is lost gradually and relatively predictably.[6] Of course, there are important countervailing concerns. While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process. But adopting the State’s per se approach would improperly ignore the current and future technological developments in warrant procedures, and might well diminish the incentive for jurisdictions “to pursue progressive approaches to warrant acquisition that preserve the protections afforded by the warrant while meeting the legitimate interests of law enforcement.” State v. Rodriguez, 2007 UT 15, ¶46, 156 P.3d 771, 779. In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances. C In an opinion concurring in part and dissenting in part, The Chief Justice agrees that the State’s proposed per se rule is overbroad because “[f]or exigent circumstances to justify a warrantless search . . . there must . . . be ‘no time to secure a warrant.’ ” Post, at 6 (quoting Tyler, 436 U. S., at 509). But The Chief Justice then goes on to suggest his own categorical rule under which a warrantless blood draw is permissible if the officer could not secure a warrant (or reasonably believed he could not secure a warrant) in the time it takes to transport the suspect to a hospital or similar facility and obtain medical assistance. Post, at 8–9. Although we agree that delay inherent to the blood-testing process is relevant to evaluating exigency, see supra, at 10, we decline to substitute The Chief Justice’s modified per se rule for our traditional totality of the circumstances analysis. For one thing, making exigency completely dependent on the window of time between an arrest and a blood test produces odd consequences. Under The Chief Justice’s rule, if a police officer serendipitously stops a suspect near an emergency room, the officer may conduct a noncon- sensual warrantless blood draw even if all agree that a warrant could be obtained with very little delay under the circumstances (perhaps with far less delay than an average ride to the hospital in the jurisdiction). The rule would also distort law enforcement incentives. As with the State’s per se rule, The Chief Justice’s rule might discourage efforts to expedite the warrant process because it categorically authorizes warrantless blood draws so long as it takes more time to secure a warrant than to obtain medical assistance. On the flip side, making the requirement of independent judicial oversight turn exclusively on the amount of time that elapses between an arrest and BAC testing could induce police departments and individual officers to minimize testing delay to the detriment of other values. The Chief Justice correctly observes that “[t]his case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road.” Post, at 6–7, n. 2. But The Chief Justice does not say that roadside blood draws are necessarily un- reasonable, and if we accepted The Chief Justice’s approach, they would become a more attractive option for the police. III The remaining arguments advanced in support of a per se exigency rule are unpersuasive. The State and several of its amici, including the United States, express concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers deciding whether to conduct a blood test of a drunk-driving suspect without a warrant. The Chief Justice and the dissent also raise this concern. See post, at 1, 9–10 (opinion of Roberts, C. J.); post, at 5–7 (opinion of Thomas, J.). While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake. Moreover, a case-by-case approach is hardly unique within our Fourth Amendment jurisprudence. Numerous police actions are judged based on fact-intensive, totality of the circumstances analyses rather than according to categorical rules, including in situations that are more likely to require police officers to make difficult split-second judgments. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 123–125 (2000) (whether an officer has reasonable suspicion to make an investigative stop and to pat down a suspect for weapons under Terry v. Ohio, 392 U.S. 1 (1968)); Robinette, 519 U. S., at 39–40 (whether valid consent has been given to search); Tennessee v. Garner, 471 U.S. 1, 8–9, 20 (1985) (whether force used to effectuate a seizure, including deadly force, is reasonable). As in those contexts, we see no valid substitute for careful case-by-case evaluation of reasonableness here.[7] Next, the State and the United States contend that the privacy interest implicated by blood draws of drunk-driving suspects is relatively minimal. That is so, they claim, both because motorists have a diminished expectation of privacy and because our cases have repeatedly indicated that blood testing is commonplace in society and typically involves “virtually no risk, trauma, or pain.” Schmerber, 384 U. S., at 771. See also post, at 3, and n. 1 (opinion of Thomas, J.). But the fact that people are “accorded less privacy in . . . automobiles because of th[e] compelling governmental need for regulation,” California v. Carney, 471 U.S. 386, 392 (1985), does not diminish a motorist’s privacy interest in preventing an agent of the government from piercing his skin. As to the nature of a blood test conducted in a medical setting by trained personnel, it is concededly less intrusive than other bodily invasions we have found unreasonable. See Winston, 470 U. S., at 759–766 (surgery to remove a bullet); Rochin v. California, 342 U.S. 165, 172–174 (1952) (induced vomiting to extract narcotics capsules ingested by a suspect violated the Due Process Clause). For that reason, we have held that medically drawn blood tests are reasonable in appropriate circumstances. See Skinner, 489 U. S., at 618–633 (upholding warrantless blood testing of railroad employees involved in certain train accidents under the “special needs” doctrine); Schmerber, 384 U. S., at 770–772. We have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the State and its amici point to the compelling governmental interest in combating drunk driving and contend that prompt BAC testing, including through blood testing, is vital to pursuit of that interest. They argue that is particularly so because, in addition to laws that make it illegal to operate a motor vehicle under the influence of alcohol, all 50 States and the District of Columbia have enacted laws that make it per se unlawful to operate a motor vehicle with a BAC of over 0.08 percent. See National Highway Traffic Safety Admin. (NHTSA), Al- cohol and Highway Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011) (NHTSA Review).[8] To enforce these provisions, they reasonably assert, accurate BAC evidence is critical. See also post, at 4–5 (opinion of Roberts, C. J.); post, at 4–5 (opinion of Thomas, J.). “No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.” Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451 (1990). Certainly we do not. While some progress has been made, drunk driving continues to exact a terrible toll on our society. See NHTSA, Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012) (reporting that 9,878 people were killed in alcohol-impaired driving crashes in 2011, an average of one fatality every 53 minutes). But the general importance of the government’s interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. To the extent that the State and its amici contend that applying the traditional Fourth Amendment totality-of-the-circumstances analysis to determine whether an exigency justified a warrantless search will undermine the governmental interest in preventing and prosecuting drunk-driving offenses, we are not convinced. As an initial matter, States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. See NHTSA Review 173; supra, at 2 (describing Missouri’s implied consent law). Such laws impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution. See NHTSA Review 173–175; see also South Dakota v. Neville, 459 U.S. 553, 554, 563–564 (1983) (holding that the use of such an adverse inference does not violate the Fifth Amendment right against self-incrimination). It is also notable that a majority of States either place significant restrictions on when police officers may obtain a blood sample despite a suspect’s refusal (often limiting testing to cases involving an accident resulting in death or serious bodily injury) or prohibit nonconsensual blood tests altogether.[9] Among these States, several lift restrictions on nonconsensual blood testing if law enforcement officers first obtain a search warrant or similar court order.[10] Cf. Bullcoming v. New Mexico, 564 U. S. ___, ___ (2011) (slip op., at 3) (noting that the blood test was obtained pursuant to a warrant after the petitioner refused a breath test). We are aware of no evidence indicating that restrictions on nonconsensual blood testing have compromised drunk-driving enforcement efforts in the States that have them. And in fact, field studies in States that permit nonconsensual blood testing pursuant to a warrant have suggested that, although warrants do impose administrative burdens, their use can reduce breath-test-refusal rates and improve law enforcement’s ability to recover BAC evidence. See NHTSA, Use of Warrants for Breath Test Refusal: Case Studies 36–38 (No. 810852, Oct. 2007). To be sure, “States [may] choos[e] to protect privacy beyond the level that the Fourth Amendment requires.” Virginia v. Moore, 553 U.S. 164, 171 (2008). But wide-spread state restrictions on nonconsensual blood testing provide further support for our recognition that compelled blood draws implicate a significant privacy interest. They also strongly suggest that our ruling today will not “severely hamper effective law enforcement.” Garner, 471 U. S., at 19. IV The State argued before this Court that the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case. The State did not argue that there were exigent circumstances in this particular case because a warrant could not have been obtained within a reasonable amount of time. In his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual delay in securing a warrant. App. 40. He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was “sure” a prosecuting attorney was on call and even though he had no reason to believe that a magistrate judge would have been unavailable. Id., at 39, 41–42. The officer also acknowledged that he had obtained search warrants before taking blood samples in the past without difficulty. Id., at 42. He explained that he elected to forgo a warrant application in this case only because he believed it was not legally necessary to obtain a warrant. Id., at 39–40. Based on this testimony, the trial court concluded that there was no exigency and specifically found that, although the arrest took place in the middle of the night, “a prosecutor was readily available to apply for a search warrant and a judge was readily available to issue a warrant.” App. to Pet. for Cert. 43a.[11] The Missouri Supreme Court in turn affirmed that judgment, holding first that the dissipation of alcohol did not establish a per se exigency, and second that the State could not otherwise satisfy its burden of establishing exigent circumstances. 358 S. W. 3d, at 70, 74–75. In petitioning for certiorari to this Court, the State challenged only the first holding; it did not separately contend that the warrantless blood test was reasonable regardless of whether the natural dissipation of alcohol in a suspect’s blood categorically justifies dispensing with the warrant requirement. See Pet. for Cert. i. Here and in its own courts the State based its case on an insistence that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood test without any precondition for a warrant. That is incorrect. Although the Missouri Supreme Court referred to this case as “unquestionably a routine DWI case,” 358 S. W. 3d, at 74, the fact that a particular drunk-driving stop is “routine” in the sense that it does not involve “ ‘special facts,’ ” ibid., such as the need for the police to attend to a car accident, does not mean a warrant is required. Other factors present in an ordinary traffic stop, such as the procedures in place for obtaining a warrant or the avail- ability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search. The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case. Because this case was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed. But that inquiry ought not to be pursued here where the question is not properly before this Court. Having rejected the sole argument presented to us challenging the Missouri Supreme Court’s decision, we affirm its judgment. * * * We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not con- stitute an exigency in every case sufficient to justify conducting a blood test without a warrant. The judgment of the Missouri Supreme Court is affirmed. It is so ordered. Notes 1 As a result of his two prior drunk-driving convictions, McNeely was charged with a class D felony under Missouri law, which carries a maximum imprisonment term of four years. See Mo. Ann. Stat. §§558.011, 577.023.1(5), 577.023.3 (West 2011). 2 Compare 358 S.W.3d 65 (2012) (case below), State v. Johnson, 744 N.W.2d 340 (Iowa 2008) (same conclusion), and State v. Rodriguez, 2007 UT 15, 156 P.3d 771 (same), with State v. Shriner, 751 N.W.2d 538 (Minn. 2008) (holding that the natural dissipation of blood-alcohol evidence alone constitutes a per se exigency), State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993) (same); State v. Woolery, 116 Idaho 368, 775 P.2d 1210 (1989) (same). 3 We have recognized a limited class of traditional exceptions to the warrant requirement that apply categorically and thus do not require an assessment of whether the policy justifications underlying the ex-ception, which may include exigency-based considerations, are im-plicated in a particular case. See, e.g., California v. Acevedo, 500 U.S. 565, 569–570 (1991) (automobile exception); United States v. Robinson, 414 U.S. 218, 224–235 (1973) (searches of a person incident to a lawful arrest). By contrast, the general exigency exception, which asks whether an emergency existed that justified a warrantless search, naturally calls for a case-specific inquiry. 4 See Ala. Rule Crim. Proc. 3.8(b) (2012–2013); Alaska Stat. §12.35.015 (2012); Ariz. Rev. Stat. Ann. §§13–3914(C), 13–3915(D), (E) (West 2010); Ark. Code Ann. §16–82–201 (2005); Cal. Penal Code Ann. §1526(b) (West 2011); Colo. Rule Crim. Proc. 41(c)(3) (2012); Ga. Code Ann. §17–5–21.1 (2008); Haw. Rules Penal Proc. 41(h)–(i) (2013); Idaho Code §§19–4404, 19–4406 (Lexis 2004); Ind. Code §35–33–5–8 (2012); Iowa Code §§321J.10(3), 462A.14D(3) (2009) (limited to specific circumstances involving accidents); Kan. Stat. Ann. §§22–2502(a), 22–2504 (2011 Cum. Supp.); La. Code Crim. Proc. Ann., Arts. 162.1(B), (D) (West 2003); Mich. Comp. Laws Ann. §§780.651(2)–(6) (West 2006); Minn. Rules Crim. Proc. 33.05, 36.01–36.08 (2010 and Supp. 2013); Mont. Code Ann. §§46–5–221, 46–5–222 (2012); Neb. Rev. Stat. §§29–814.01, 29–814.03, 29–814.05 (2008); Nev. Rev. Stat. §§179.045(2), (4) (2011); N. H. Rev. Stat. Ann. §595–A:4–a (Lexis Supp. 2012); N. J. Rule Crim. Proc. 3:5–3(b) (2013); N. M. Rules Crim. Proc. 5–211(F)(3), (G)(3) (Supp. 2012); N. Y. Crim. Proc. Law Ann. §§690.35(1), 690.36(1), 690.40(3), 690.45(1), (2) (West 2009); N. C. Gen. Stat. Ann. §15A–245(a)(3) (Lexis 2011); N. D. Rules Crim. Proc. 41(c)(2)–(3) (2012–2013); Ohio Rules Crim. Proc. 41(C)(1)–(2) (2011); Okla. Stat. Ann., Tit. 22, §§1223.1, 1225(B) (West 2011); Ore. Rev. Stat. §§133.545(5)–(6) (2011); Pa. Rules Crim. Proc. 203(A), (C) (2012); S. D. Codified Laws §§23A–35–4.2, 23A–35–5, 23A–35–6 (2004); Utah Rule Crim. Proc. 40(l) (2012); Vt. Rules Crim. Proc. 41(c)(4), (g)(2) (Supp. 2012); Va. Code Ann. §19.2–54 (Lexis Supp. 2012); Wash. Super. Ct. Crim. Rule 2.3(c) (2002); Wis. Stat. §968.12(3) (2007–2008); Wyo. Stat. Ann. §31–6–102(d) (2011); see generally 2 W. LaFave, Search and Seizure §4.3(b), pp. 511–516, andn. 29 (4th ed. 2004) (describing oral search warrants and collecting state laws). Missouri requires that search warrants be in writing and does not permit oral testimony, thus excluding telephonic warrants. Mo. Ann. Stat. §§542.276.2(1), 542.276.3 (West Supp. 2012). State law does permit the submission of warrant applications “by facsimile or other electronic means.” §542.276.3. 5 During the suppression hearing in this case, McNeely entered into evidence a search-warrant form used in drunk-driving cases by the prosecutor’s office in Cape Girardeau County, where the arrest took place. App. 61–69. The arresting officer acknowledged that he had used such forms in the past and that they were “readily available.” Id., at 41–42. 6 The dissent claims that a “50-state survey [is] irrelevant to the actual disposition of this case” because Missouri requires written warrant applications. Post, at 8. But the per se exigency rule that the State seeks and the dissent embraces would apply nationally because it treats “the body’s natural metabolization of alcohol” as a sufficient basis for a warrantless search everywhere and always. Post, at 1. The technological innovations in warrant procedures that many Stateshave adopted are accordingly relevant to show that the per se rule is overbroad. 7 The dissent contends that officers in the field will be unable to apply the traditional totality of the circumstances test in this context because they will not know all of the relevant facts at the time of an arrest. See post, at 6. But because “[t]he police are presumably familiar with the mechanics and time involved in the warrant process in their particular jurisdiction,” post, at 8 (opinion of Roberts, C. J.), we expect that officers can make reasonable judgments about whether the warrant process would produce unacceptable delay under the circumstances. Reviewing courts in turn should assess those judgments “ ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ ” Ryburn v. Huff, 565 U. S. ___, ___ (2012) (per curiam) (slip op., at 8). 8 Pursuant to congressional directive, the NHTSA conditions federal highway grants on States’ adoption of laws making it a per se offense to operate a motor vehicle with a BAC of 0.08 percent or greater. See 23 U. S. C. §163(a); 23 CFR §1225.1 (2012). Several federal prohibitions on drunk driving also rely on the 0.08 percent standard. E.g., 32 CFR §§234.17(c)(1)(ii), 1903.4(b)(1)(i)–(ii); 36 CFR §4.23(a)(2). In addition, 32 States and the District of Columbia have adopted laws that impose heightened penalties for operating a motor vehicle at or above a BAC of 0.15 percent. See NHTSA Review 175. 9 See Ala. Code §32–5–192(c) (2010); Alaska Stat. §§28.35.032(a), 28.35.035(a) (2012); Ariz. Rev. Stat. Ann. §28–1321(D)(1) (West 2012); Ark. Code Ann. §§5–65–205(a)(1), 5–65–208(a)(1) (Supp. 2011);Conn. Gen. Stat. §§14–227b(b), 14–227c(b) (2011); Fla. Stat. Ann. §316.1933(1)(a) (West 2006); Ga. Code Ann. §§40–5–67.1(d), (d.1) (2011); Haw. Rev. Stat. §291E–15 (2009 Cum. Supp.), §§291E–21(a), 291E–33 (2007), §291E–65 (2009 Cum. Supp.); Iowa Code §§321J.9(1), 321J.10(1), 321J.10A(1) (2009); Kan. Stat. Ann. §§8–1001(b), (d) (2001); Ky. Rev. Stat. Ann. §189A.105(2) (Lexis Supp. 2012); La. Rev. Stat. Ann. §§32:666.A(1)(a)(i), (2) (Supp. 2013); Md. Transp. Code Ann. §§16–205.1(b)(i)(1), (c)(1) (Lexis 2012); Mass. Gen. Laws Ann., ch. 90, §§24(1)(e), (f)(1) (West 2012); Mich. Comp. Laws Ann. §257.625d(1) (West 2006); Miss. Code Ann. §63–11–21 (1973–2004); Mont. Code Ann. §§61–8–402(4), (5) (2011); Neb. Rev. Stat. §60–498.01(2) (2012Cum. Supp.), §60–6,210 (2010); N. H. Rev. Stat. Ann. §§265–A:14(I),265–A:16 (West 2012 Cum. Supp.); N. M. Stat. Ann. §66–8–111(A) (LexisNexis 2009); N. Y. Veh. & Traf. Law Ann. §§1194(2)(b)(1), 1194(3) (West 2011); N. D. Cent. Code Ann. §39–20–01.1(1) (Lexis Supp. 2011), §39–20–04(1) (Lexis 2008); Okla. Stat., Tit. 47, §753 (West Supp. 2013); Ore. Rev. Stat. §813.100(2) (2011); 75 Pa. Cons. Stat. §1547(b)(1) (2004); R. I. Gen. Laws §§31–27–2.1(b), 31–27–2.9(a) (Lexis 2010); S. C. Code Ann. §56–5–2950(B) (Supp. 2011); Tenn. Code Ann. §§55–10–406(a)(4), (f) (2012); Tex. Transp. Code Ann. §§724.012(b), 724.013 (West 2011); Vt. Stat. Ann., Tit. 23, §§1202(b), (f) (2007); Wash. Rev. Code §§46.20.308 (2)–(3), (5) (2012); W. Va. Code Ann. §17C–5–7 (Lexis Supp. 2012); Wyo. Stat. Ann. §31–6–102(d) (Lexis 2011). 10 See Ariz. Rev. Stat. Ann. §28–1321(D)(1) (West 2012); Ga. Code Ann. §§40–5–67.1(d), (d.1) (2011); Ky. Rev. Stat. Ann. §189A.105(2)(b) (Lexis Supp. 2012); Mich. Comp. Laws Ann. §257.625d(1) (West 2006); Mont. Code Ann. §61–8–402(5) (2011); N. M. Stat. Ann. §66–8–111(A) (LexisNexis 2009); N. Y. Veh. & Traf. Law Ann. §§1194(2)(b)(1), 1194(3) (West 2011); Ore. Rev. Stat. 813.320(2)(b) (2011); R. I. Gen. Laws §31–27–2.9(a) (Lexis 2010); Tenn. Code Ann. §55–10–406(a)(4) (2012); Vt. Stat. Ann., Tit. 23, §1202(f) (2007); Wash. Rev. Code §46.20.308(1) (2012); W. Va. Code Ann. §17C–5–7 (Supp. 2012) (as interpreted in State v. Stone, 229 W. Va. 271, ___, 728 S.E.2d 155, 167–168 (2012)); Wyo. Stat. Ann. §31–6–102(d) (2011); see also State v. Harris, 763 N.W.2d 269, 273–274 (Iowa 2009) (per curiam) (recognizing that Iowa law imposes a warrant requirement subject to a limited case-specific exigency exception). 11 No findings were made by the trial court concerning how long a warrant would likely have taken to issue under the circumstances. The minimal evidence presented on this point was not uniform. A second patrol officer testified that in a typical DWI case, it takes between 90 minutes and 2 hours to obtain a search warrant following an arrest. App. 53–54. McNeely, however, also introduced an exhibit documenting six recent search warrant applications for blood testing in Cape Girardeau County that had shorter processing times. Id., at 70.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MISSOURI v. McNEELY certiorari to the supreme court of missouri No. 11–1425. Argued January 9, 2013—Decided April 17, 2013 Respondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California, 384 U.S. 757, in which this Court upheld a DWI suspect’s warrantless blood test where the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ ” id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unreasonable searches of his person. Held: The judgment is affirmed. 358 S.W.3d 65, affirmed. Justice Sotomayor delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. , 20–23. (a) The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see, e.g., United States v. Robinson, 414 U.S. 218, 224, applies here, where the search involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception “applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.’ ” Kentucky v. King, 563 U. S. ___, ___. This Court looks to the totality of circumstances in determining whether an exigency exits. See Brigham City v. Stuart, 547 U.S. 398, 406. Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while officers transported the injured suspect to the hospital and investigated the accident scene. . (b) The State nonetheless seeks a per se rule, contending that exigent circumstances necessarily exist when an officer has probable cause to believe a person has been driving under the influence of alcohol because BAC evidence is inherently evanescent. Though a person’s blood alcohol level declines until the alcohol is eliminated, it does not follow that the Court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.S. 451, 456. Circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect, Richards v. Wisconsin, 520 U.S. 385, 393. Blood testing is different in critical respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a suspect has control over easily disposable evidence, see Cupp v. Murphy, 412 U.S. 291, 296, BAC evidence naturally dissipates in a gradual and relatively predictable manner. Moreover, because an officer must typically take a DWI suspect to a medical facility and obtain a trained medical professional’s assistance before having a blood test conducted, some delay between the time of the arrest or accident and time of the test is inevitable regardless of whether a warrant is obtained. The State’s rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence supporting probable cause is simple. The natural dissipation of alcohol in the blood may support an exigency finding in a specific case, as it did in Schmerber, but it does not do so categorically. . (c) Because the State sought a per se rule here, it did not argue that there were exigent circumstances in this particular case. The arguments and the record thus do not provide the Court with an adequate framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. . Justice Sotomayor, joined by Justice Scalia, Justice Ginsburg, and Justice Kagan, concluded in Part III that other arguments advanced by the State and amici in support of a per se rule are unpersuasive. Their concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers may make the desire for a bright-line rule understandable, but the Fourth Amendment will not tolerate adoption of an overly broad categorical approach in this context. A fact-intensive, totality of the circumstances, approach is hardly unique within this Court’s Fourth Amendment jurisprudence. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 123–125. They also contend that the privacy interest implicated here is minimal. But motorists’ diminished expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. . Sotomayor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which Scalia, Kennedy, Ginsburg, and Kagan, JJ., joined, and an opinion with respect to Parts II–C and III, in which Scalia, Ginsburg, and Kagan, JJ., joined. Kennedy, J., filed an opinion concurring in part. Roberts, C. J., filed an opinion concurring in part and dissenting in part, in which Breyer and Alito, JJ., joined. Thomas, J., filed a dissenting opinion.

A Missouri police officer stopped petitioner McNeely for driving under the influence of alcohol. After McNeely performed poorly on a battery of field-sobriety tests and declined to use a breath-test device to measure his blood alcohol concentration (BAC), the officer placed him under arrest. The officer began to transport McNeely to a hospital, but when he again refused to provide a breath sample, the officer changed course and took him to a nearby hospital for blood testing. The officer did not attempt to obtain a warrant, but explained to McNeely that, under state law refusal to submit voluntarily to the test would lead to revocation of his driver's license for one year and could be used against him in a future prosecution. McNeely was then charged with driving while intoxicated (DWI) in violation of §577.010. The trial court agreed, holding that the exigency exception to the warrant requirement did not apply because, apart from the fact that blood alcohol was being metabolized by the liver, there were no circumstances suggesting the officer faced an emergency in which he could not practicably obtain a search warrant. The Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court, which affirmed. Held: 1. In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not con- stitute an exigent in every case sufficient to justify conducting a blood test without a warrant. Schmerber v. California, 384 U.S. 757. . (a) The warrant requirement is subject to ex- ceptions. A variety of circumstances may give rise to exigencies of the situation that make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. See, e.g., Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 6). However, a State may not, consistently with Fourth Amendment reasonableness, simply believe that an officer has been acting in a reasonable manner for a reasonable reason. Here, the evidence in this case was not a routine DWI case, but rather a routine one. Moreover, McNeely had a history of alcohol-impaired driving arrests in California, which has a broad range of legal tools to enforce its drunk driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. Although the California Supreme Court did not separately contend that the warrantless blood test was reasonable regardless of whether the dissipation alcohol in a suspect's blood categorically justifies dispensing with the warrant, the court nevertheless held that the nonpresensual blood draw violated McNeely's Fourth Amendment right to be free from unreasonable searches of his person. Ibid. (b) The judgment is affirmed. This analysis fits comfortably within the case law applying the exigent circumstances exception, since the blood-draining process is not affected by the fact-intensive totality of the circumstances analysis, and since the factors that must be considered in determining whether the police action at issue is reasonable include the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence. As to the nature of the blood test conducted in a medical setting by trained personnel, it is concededly less intrusive than other bodily invasions that have been found unreasonable. Moreover, the State and its amici point to the compelling governmental interest in combating drunk driving, and contend that prompt BAC testing, including through blood testing, is vital to pursuit of that interest.. 2. Although delay inherent to a blood-testing process is relevant to evaluating exgency, it does not, categorically, support a finding of reasonable blood test in a specific case. See Schmersber, supra, at 758. There is no evidence indicating that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests, and a categorical exception would distort law enforcement incentives. See id., at 772. Nor is there any merit to the argument that a case-by-case approach will not provide adequate guidance to law enforcement officers deciding whether to conduct a blood blood test of a drunk-drunk-driving suspect. See Id., at 1, 9, and IV. To the extent that the State contends that applying the traditional Fourth Amendment totality-of-the-circumstances analysis will undermine the governmental interest, this Court will not substitute the modified per se rule for this traditional totality analysis. While, under the circumstances, some circumstances will make a warrant impractical, such as the time between an arrest or accident and the time of the test, the need for regulation will not significantly increase the process before the warrant can be conducted. In addition, there are other factors that are relevant to determining whether a warrant is warranted. Such as, for example, whether a police officer has reasonable suspicion to make an investigative stop and to pat down a suspect

2012_11-702

https://www.oyez.org/cases/2012/11-702

. The Immigration and Nationality Act (INA), 66Stat. 163, 8 U. S. C. §1101 et seq., provides that a noncitizen who has been convicted of an “aggravated felony” may be deported from this country. The INA also prohibits the Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case. Among the crimes that are classified as aggravated felonies, and thus lead to these harsh consequences, are illicit drug trafficking offenses. We must decide whether this category includes a state criminal statute that extends to the social sharing of a small amount of marijuana. We hold it does not. I A The INA allows the Government to deport various classes of noncitizens, such as those who overstay their visas, and those who are convicted of certain crimes while in the United States, including drug offenses. §1227. Ordinarily, when a noncitizen is found to be deportable on one of these grounds, he may ask the Attorney General for certain forms of discretionary relief from removal, like asylum (if he has a well-founded fear of persecution in his home country) and cancellation of removal (if, among other things, he has been lawfully present in the United States for a number of years). §§1158, 1229b. But if a noncitizen has been convicted of one of a narrower set of crimes classified as “aggravated felonies,” then he is not only deportable, §1227(a)(2)(A)(iii), but also ineligible for these discretionary forms of relief. See §§1158(b)(2)(A)(ii), (B)(i); §§1229b(a)(3), (b)(1)(C).[1] The INA defines “aggravated felony” to include a host of offenses. §1101(a)(43). Among them is “illicit trafficking in a controlled substance.” §1101(a)(43)(B). This general term is not defined, but the INA states that it “includ[es] a drug trafficking crime (as defined in section 924(c) of title 18).” Ibid. In turn, 18 U. S. C. §924(c)(2) defines “drug trafficking crime” to mean “any felony punishable under the Controlled Substances Act,” or two other statues not relevant here. The chain of definitions ends with §3559(a)(5), which provides that a “felony” is an offense for which the “maximum term of imprisonment authorized” is “more than one year.” The upshot is that a noncitizen’s conviction of an offense that the Controlled Substances Act (CSA) makes punishable by more than one year’s imprisonment will be counted as an “aggravated felony” for immigration purposes. A conviction under either state or federal law may qualify, but a “state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549 U.S. 47, 60 (2006). B Petitioner Adrian Moncrieffe is a Jamaican citizen who came to the United States legally in 1984, when he was three. During a 2007 traffic stop, police found 1.3 grams of marijuana in his car. This is the equivalent of about two or three marijuana cigarettes. Moncrieffe pleaded guilty to possession of marijuana with intent to distribute, a violation of Ga. Code Ann. §16–13–30(j)(1) (2007). Under a Georgia statute providing more lenient treatment to first-time offenders, §42–8–60(a) (1997), the trial court withheld entering a judgment of conviction or imposing any term of imprisonment, and instead required that Moncrieffe complete five years of probation, after which his charge will be expunged altogether.[2] App. to Brief for Petitioner 11–15. Alleging that this Georgia conviction constituted an aggravated felony, the Federal Government sought to deport Moncrieffe. The Government reasoned that possession of marijuana with intent to distribute is an offense under the CSA, 21 U. S. C. §841(a), punishable by up to five years’ imprisonment, §841(b)(1)(D), and thus an aggravated felony. An Immigration Judge agreed and ordered Moncrieffe removed. App. to Pet. for Cert. 14a–18a. The Board of Immigration Appeals (BIA) affirmed that conclusion on appeal. Id., at 10a–13a. The Court of Appeals denied Moncrieffe’s petition for review. The court rejected Moncrieffe’s reliance upon §841(b)(4), a provision that, in effect, makes marijuana distribution punishable only as a misdemeanor if the offense involves a small amount of marijuana for no remuneration. It held that in a federal criminal prosecution, “the default sentencing range for a marijuana distribution offense is the CSA’s felony provision, §841(b)(1)(D), rather than the misdemeanor provision.” 662 F.3d 387, 392 (CA5 2011). Because Moncrieffe’s Georgia offense penalized possession of marijuana with intent to distribute, the court concluded that it was “equivalent to a federal felony.” Ibid. We granted certiorari, 566 U. S. ___ (2012), to resolve a conflict among the Courts of Appeals with respect to whether a conviction under a statute that criminalizes conduct described by both §841’s felony provision and its misdemeanor provision, such as a statute that punishes all marijuana distribution without regard to the amount or remuneration, is a conviction for an offense that “proscribes conduct punishable as a felony under” the CSA.[3] Lopez, 549 U. S., at 60. We now reverse. II A When the Government alleges that a state conviction qualifies as an “aggravated felony” under the INA, we generally employ a “categorical approach” to determine whether the state offense is comparable to an offense listed in the INA. See, e.g., Nijhawan v. Holder, 557 U.S. 29, 33–38 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–187 (2007). Under this approach we look “not to the facts of the particular prior case,” but instead to whether “the state statute defining the crime of conviction” categorically fits within the “generic” federal definition of a corresponding aggravated felony. Id., at 186 (citing Taylor v. United States, 495 U.S. 575, 599–600 (1990)). By “generic,” we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state offense is a categorical match with a generic federal offense only if a conviction of the state offense “ ‘necessarily’ involved . . . facts equating to [the] generic [federal offense].” Shepard v. United States, 544 U.S. 13, 24 (2005) (plurality opinion). Whether the noncitizen’s actual conduct involved such facts “is quite irrelevant.” United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (CA2 1939) (L. Hand, J.). Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized, and then determine whether even those acts are encompassed by the generic federal offense. Johnson v. United States, 559 U.S. 133, 137 (2010); see Guarino, 107 F. 2d, at 400. But this rule is not without qualification. First, our cases have addressed state statutes that contain several different crimes, each described separately, and we have held that a court may determine which particular offense the noncitizen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or “ ‘some comparable judicial record’ of the factual basis for the plea.” Nijhawan, 557 U. S., at 35 (quoting Shepard, 544 U. S., at 26). Sec- ond, our focus on the minimum conduct criminalized by the state statute is not an invitation to apply “legal imagination” to the state offense; there must be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Duenas-Alvarez, 549 U. S., at 193. This categorical approach has a long pedigree in our Nation’s immigration law. See Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N. Y. U. L. Rev. 1669, 1688–1702, 1749–1752 (2011) (tracing judicial decisions back to 1913). The reason is that the INA asks what offense the noncitizen was “convicted” of, 8 U. S. C. §1227(a)(2)(A)(iii), not what acts he committed. “[C]on- viction” is “the relevant statutory hook.”[4] Carachuri-Rosendo v. Holder, 560 U. S. ___, ___ (2010) (slip op., at 16); see United States ex rel. Mylius v. Uhl, 210 F. 860, 862 (CA2 1914). B The aggravated felony at issue here, “illicit trafficking in a controlled substance,” is a “generic crim[e].” Nijhawan, 557 U. S., at 37. So the categorical approach applies. Ibid. As we have explained, supra, at 2–3, this aggravated felony encompasses all state offenses that “proscrib[e] conduct punishable as a felony under [the CSA].” Lopez, 549 U. S., at 60. In other words, to satisfy the categorical approach, a state drug offense must meet two conditions: It must “necessarily” proscribe conduct that is an offense under the CSA, and the CSA must “necessarily” prescribe felony punishment for that conduct. Moncrieffe was convicted under a Georgia statute that makes it a crime to “possess, have under [one’s] control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute mari- juana.” Ga. Code Ann. §16–13–30(j)(1). We know from his plea agreement that Moncrieffe was convicted of the last of these offenses. App. to Brief for Petitioner 11; Shepard, 544 U. S., at 26. We therefore must determine whether possession of marijuana with intent to distribute is “necessarily” conduct punishable as a felony under the CSA. We begin with the relevant conduct criminalized by the CSA. There is no question that it is a federal crime to “possess with intent to . . . distribute . . . a controlled substance,” 21 U. S. C. §841(a)(1), one of which is mari- juana, §812(c).[5] So far, the state and federal provisions correspond. But this is not enough, because the generically defined federal crime is “any felony punishable under the Controlled Substances Act,” 18 U. S. C. §924(c)(2), not just any “offense under the CSA.” Thus we must look to what punishment the CSA imposes for this offense. Section 841 is divided into two subsections that are relevant here: (a), titled “Unlawful acts,” which includes the offense just described, and (b), titled “Penalties.” Subsection (b) tells us how “any person who violates subsection (a)” shall be punished, depending on the circumstances of his crime (e.g., the type and quantity of controlled substance involved, whether it is a repeat offense).[6] Subsection (b)(1)(D) provides that if a person commits a violation of subsection (a) involving “less than 50 kilograms of marihuana,” then “such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years,” i.e., as a felon. But one of the exceptions is important here. Paragraph (4) provides, “Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor, 21 U. S. C. §844, which for our purposes means as a misdemeanant.[7] These dovetailing provisions create two mutually exclusive categories of punishment for CSA marijuana distribution offenses: one a felony, and one not. The only way to know whether a marijuana distribution offense is “punishable as a felony” under the CSA, Lopez, 549 U. S., at 60, is to know whether the conditions described in paragraph (4) are present or absent. A conviction under the same Georgia statute for “sell[ing]” marijuana, for example, would seem to establish remuneration. The presence of remuneration would mean that paragraph (4) is not implicated, and thus that the conviction is necessarily for conduct punishable as a felony under the CSA (under paragraph (1)(D)). In contrast, the fact of a conviction for possession with intent to distribute marijuana, standing alone, does not reveal whether either remuneration or more than a small amount of marijuana was involved. It is possible neither was; we know that Georgia prosecutes this offense when a defendant possesses only a small amount of marijuana, see, e.g., Taylor v. State, 260 Ga. App. 890, 581 S.E.2d 386, 388 (2003) (6.6 grams), and that “distribution” does not require remuneration, see, e.g., Hadden v. State, 181 Ga. App. 628, 628–629, 353 S.E.2d 532, 533–534 (1987). So Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. Ambiguity on this point means that the conviction did not “necessarily” involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony. III A The Government advances a different approach that leads to a different result. In its view, §841(b)(4)’s misdemeanor provision is irrelevant to the categorical analysis because paragraph (4) is merely a “mitigating exception,” to the CSA offense, not one of the “elements” of the offense. Brief for Respondent 12. And because possession with intent to distribute marijuana is “presumptive[ly]” a felony under the CSA, the Government asserts, any state offense with the same elements is presumptively an aggravated felony. Id., at 37. These two contentions are related, and we reject both of them. First, the Government reads our cases to hold that the categorical approach is concerned only with the “elements” of an offense, so §841(b)(4) “is not relevant” to the categorical analysis. Id., at 20. It is enough to satisfy the categorical inquiry, the Government suggests, that the “elements” of Moncrieffe’s Georgia offense are the same as those of the CSA offense: (1) possession (2) of marijuana (a controlled substance), (3) with intent to distribute it. But that understanding is inconsistent with Carachuri-Rosendo, our only decision to address both “elements” and “sentencing factors.” There we recognized that when Congress has chosen to define the generic federal offense by reference to punishment, it may be necessary to take account of federal sentencing factors too. See 560 U. S., at ___ (slip op., at 3). In that case the relevant CSA offense was simple possession, which “becomes a ‘felony punishable under the [CSA]’ only because the sentencing factor of recidivism authorizes additional punishment beyond one year, the criterion for a felony.” Id., at ___ (Scalia, J., concurring in judgment) (slip op., at 2). We therefore called the generic federal offense “recidivist simple possession,” even though such a crime is not actually “a separate offense” under the CSA, but rather an “ ‘amalgam’ ” of offense elements and sentencing factors. Id., at ___, and n. 3, ___ (majority opinion) (slip op., at 3, and n. 3, 7). In other words, not only must the state offense of conviction meet the “elements” of the generic federal offense defined by the INA, but the CSA must punish that offense as a felony. Here, the facts giving rise to the CSA offense establish a crime that may be either a felony or a misdemeanor, depending upon the presence or absence of certain factors that are not themselves elements of the crime. And so to qualify as an aggravated felony, a conviction for the predicate offense must necessarily establish those factors as well. The Government attempts to distinguish Carachuri-Rosendo on the ground that the sentencing factor there was a “narrow” aggravating exception that turned a misdemeanor into a felony, whereas here §841(b)(4) is a narrow mitigation exception that turns a felony into a misdemeanor. Brief for Respondent 40–43. This argument hinges upon the Government’s second assertion: that any marijuana distribution conviction is “presumptively” a felony. But that is simply incorrect, and the Government’s argument collapses as a result. Marijuana distribution is neither a felony nor a misdemeanor until we know whether the conditions in paragraph (4) attach: Section 841(b)(1)(D) makes the crime punishable by five years’ imprisonment “except as provided” in paragraph (4), and §841(b)(4) makes it punishable as a misdemeanor “[n]otwithstanding paragraph (1)(D)” when only “a small amount of marihuana for no remuneration” is involved. (Emphasis added.) The CSA’s text makes neither provision the default. Rather, each is drafted to be exclusive of the other. Like the BIA and the Fifth Circuit, the Government believes the felony provision to be the default because, in practice, that is how federal criminal prosecutions for marijuana distribution operate. See 662 F. 3d, at 391–392; Matter of Aruna, 24 I. & N. Dec. 452, 456–457 (2008); Brief for Respondent 18–23. It is true that every Court of Appeals to have considered the question has held that a defendant is eligible for a 5-year sentence under §841(b)(1)(D) if the Government proves he possessed marijuana with the intent to distribute it, and that the Government need not negate the §841(b)(4) factors in each case. See, e.g., United States v. Outen, 286 F.3d 622, 636–639 (CA2 2002) (describing §841(b)(4) as a “mitigating exception”); United States v. Hamlin, 319 F.3d 666, 670–671 (CA4 2003) (collecting cases). Instead, the burden is on the defendant to show that he qualifies for the lesser sentence under §841(b)(4). Cf. id., at 671. We cannot discount §841’s text, however, which creates no default punishment, in favor of the procedural overlay or burdens of proof that would apply in a hypothetical federal criminal prosecution. In Carachuri-Rosendo, we rejected the Fifth Circuit’s “ ‘hypothetical approach,’ ” which examined whether conduct “ ‘could have been punished as a felony’ ‘had [it] been prosecuted in federal court.’ ” 560 U. S., at ___, ___ (slip op., at 8, 11).[8] The outcome in a hypothetical prosecution is not the relevant inquiry. Rather, our “more focused, categorical inquiry” is whether the record of conviction of the predicate offense necessarily establishes conduct that the CSA, on its own terms, makes punishable as a felony. Id., at ___ (slip op., at 16). The analogy to a federal prosecution is misplaced for another reason. The Court of Appeals cases the Government cites distinguished between elements and sentencing factors to determine which facts must be proved to a jury, in light of the Sixth Amendment concerns addressed in Apprendi v. New Jersey, 530 U.S. 466 (2000). The courts considered which “provision . . . states a complete crime upon the fewest facts,” Outen, 286 F. 3d, at 638, which was significant after Apprendi to identify what a jury had to find before a defendant could receive §841(b)(1)(D)’s maximum 5-year sentence. But those concerns do not apply in this context. Here we consider a “generic” federal offense in the abstract, not an actual federal offense being prosecuted before a jury. Our concern is only which facts the CSA relies upon to distinguish between felonies and misdemeanors, not which facts must be found by a jury as opposed to a judge, nor who has the burden of proving which facts in a federal prosecution.[9] Because of these differences, we made clear in Carachuri-Rosendo that, for purposes of the INA, a generic fed- eral offense may be defined by reference to both “ ‘elements’ in the traditional sense” and sentencing factors. 560 U. S., at ___, n. 3, ___ (slip op., at 3, n. 3, 7); see also id., at ___ (Scalia, J., concurring in judgment) (slip op., at 3) (describing the generic federal offense there as “the Controlled Substances Act felony of possession-plus-recidivism”). Indeed, the distinction between “elements” and “sentencing factors” did not exist when Congress added illicit drug trafficking to the list of aggravated felonies, Anti-Drug Abuse Act of 1988, 102Stat. 4469–4470, and most courts at the time understood both §841(b)(1)(D) and §841(b)(4) to contain sentencing factors that draw the line between a felony and a misdemeanor. See, e.g., United States v. Campuzano, 905 F.2d 677, 679 (CA2 1990). Carachuri-Rosendo controls here. Finally, there is a more fundamental flaw in the Government’s approach: It would render even an undisputed misdemeanor an aggravated felony. This is “just what the English language tells us not to expect,” and that leaves us “very wary of the Government’s position.” Lopez, 549 U. S., at 54. Consider a conviction under a New York statute that provides, “A person is guilty of criminal sale of marihuana in the fifth degree when he knowingly and unlawfully sells, without consideration, [marihuana] of an aggregate weight of two grams or less; or one cigarette containing marihuana.” N. Y. Penal Law Ann. §221.35 (West 2008) (emphasis added). This statute criminalizes only the distribution of a small amount of marijuana for no remuneration, and so all convictions under the statute would fit within the CSA misdemeanor provision, §841(b)(4). But the Government would categorically deem a conviction under this statute to be an aggravated felony, because the statute contains the corresponding “elements” of (1) distributing (2) marijuana, and the Government believes all marijuana distribution offenses are punishable as felonies. The same anomaly would result in the case of a noncitizen convicted of a misdemeanor in federal court under §§841(a) and (b)(4) directly. Even in that case, under the Government’s logic, we would need to treat the federal misdemeanor conviction as an aggravated felony, because the conviction establishes elements of an offense that is presumptively a felony. This cannot be. “We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors,” only to have courts presume felony treatment and ignore the very factors that distinguish felonies from misdemeanors. Lopez, 549 U. S., at 58. B Recognizing that its approach leads to consequences Congress could not have intended, the Government hedges its argument by proposing a remedy: Noncitizens should be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration, just as a federal criminal defendant could do at sentencing. Brief for Respondent 35–39. This is the procedure adopted by the BIA in Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 702 (2012), and endorsed by Justice Alito’s dissent, post, at 11–12. This solution is entirely inconsistent with both the INA’s text and the categorical approach. As noted, the relevant INA provisions ask what the noncitizen was “convicted of,” not what he did, and the inquiry in immigration proceedings is limited accordingly. 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3); see Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 11). The Government cites no statutory authority for such case-specific factfinding in immigration court, and none is apparent in the INA. Indeed, the Government’s main categorical argument would seem to preclude this inquiry: If the Government were correct that “the fact of a marijuana-distribution conviction alone constitutes a CSA felony,” Brief for Respondent 37, then all marijuana distribution convictions would categorically be convictions of the drug trafficking aggravated felony, mandatory deportation would follow under the statute, and there would be no room for the Government’s follow-on factfinding procedure. The Government cannot have it both ways. Moreover, the procedure the Government envisions would require precisely the sort of post hoc investigation into the facts of predicate offenses that we have long deemed undesirable. The categorical approach serves “practical” purposes: It promotes judicial and administrative efficiency by precluding the relitigation of past convictions in minitrials conducted long after the fact. Chambers v. United States, 555 U.S. 122, 125 (2009); see also Mylius, 210 F., at 862–863. Yet the Government’s approach would have our Nation’s overburdened immigration courts entertain and weigh testimony from, for example, the friend of a noncitizen who may have shared a marijuana cigarette with him at a party, or the local police officer who recalls to the contrary that cash traded hands. And, as a result, two noncitizens, each “convicted of” the same offense, might obtain different aggravated felony determinations depending on what evidence remains available or how it is perceived by an individual immigration judge. The categorical approach was designed to avoid this “potential unfairness.” Taylor, 495 U. S., at 601; see also Mylius, 210 F., at 863. Furthermore, the minitrials the Government proposes would be possible only if the noncitizen could locate witnesses years after the fact, notwithstanding that during removal proceedings noncitizens are not guaranteed legal representation and are often subject to mandatory detention, §1226(c)(1)(B), where they have little ability to collect evidence. See Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3, 5–10 (2008); Brief for National Immigrant Justice Center et al. as Amici Curiae 5–18; Brief for Immigration Law Professors as Amici Curiae 27–32. A noncitizen in removal proceedings is not at all similarly situated to a defendant in a federal criminal prosecution. The Government’s suggestion that the CSA’s procedures could readily be replicated in immigration proceedings is therefore misplaced. Cf. Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 14–15) (rejecting the Government’s argument that procedures governing determination of the recidivism sentencing factor could “be satisfied during the immigration proceeding”). The Government defends its proposed immigration court proceedings as “a subsequent step outside the categorical approach in light of Section 841(b)(4)’s ‘circumstance-specific’ nature.” Brief for Respondent 37. This argument rests upon Nijhawan, in which we considered another aggravated felony, “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U. S. C. §1101(a)(43)(M)(i). We held that the $10,000 threshold was not to be applied categorically as a required component of a generic offense, but instead called for a “circumstance-specific approach” that allows for an examination, in immigration court, of the “particular circumstances in which an offender committed the crime on a particular occasion.” Nijhawan, 557 U. S., at 38–40. The Government suggests the §841(b)(4) factors are like the monetary threshold, and thus similarly amenable to a circumstance-specific inquiry. We explained in Nijhawan, however, that unlike the provision there, “illicit trafficking in a controlled substance” is a “generic crim[e]” to which the categorical approach applies, not a circumstance-specific provision. Id., at 37; see also Carachuri-Rosendo, 560 U. S., at ___, n. 11 (slip op., at 12–13, n. 11). That distinction is evident in the structure of the INA. The monetary threshold is a limitation, written into the INA itself, on the scope of the aggravated felony for fraud. And the monetary threshold is set off by the words “in which,” which calls for a circumstance-specific examination of “the conduct involved ‘in’ the commission of the offense of conviction.” Nijhawan, 557 U. S., at 39. Locating this exception in the INA proper suggests an intent to have the relevant facts found in immigration proceedings. But where, as here, the INA incorporates other criminal statutes wholesale, we have held it “must refer to generic crimes,” to which the categorical approach applies. Id., at 37. Finally, the Government suggests that the immigration court’s task would not be so daunting in some cases, such as those in which a noncitizen was convicted under the New York statute previously discussed or convicted directly under §841(b)(4). True, in those cases, the record of conviction might reveal on its face that the predicate offense was punishable only as a misdemeanor. But most States do not have stand-alone offenses for the social sharing of marijuana, so minitrials concerning convictions from the other States, such as Georgia, would be inevitable.[10] The Government suggests that even in these other States, the record of conviction may often address the §841(b)(4) factors, because noncitizens “will be advised of the immigration consequences of a conviction,” as defense counsel is required to do under Padilla v. Kentucky, 559 U.S. 359 (2010), and as a result counsel can build an appropriate record when the facts are fresh. Brief for Respondent 38. Even assuming defense counsel “will” do something simply because it is required of effective counsel (an assumption experience does not always bear out), this argument is unavailing because there is no reason to believe that state courts will regularly or uniformly admit evidence going to facts, such as remuneration, that are irrelevant to the offense charged. In short, to avoid the absurd consequences that would flow from the Government’s narrow understanding of the categorical approach, the Government proposes a solution that largely undermines the categorical approach. That the only cure is worse than the disease suggests the Government is simply wrong. C The Government fears the consequences of our decision, but its concerns are exaggerated. The Government observes that, like Georgia, about half the States criminalize marijuana distribution through statutes that do not require remuneration or any minimum quantity of mari- juana. Id., at 26–28. As a result, the Government contends, noncitizens convicted of marijuana distribution offenses in those States will avoid “aggravated felony” determinations, purely because their convictions do not resolve whether their offenses involved federal felony conduct or misdemeanor conduct, even though many (if not most) prosecutions involve either remuneration or larger amounts of marijuana (or both). Escaping aggravated felony treatment does not mean escaping deportation, though. It means only avoiding mandatory removal. See Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 17). Any marijuana distribution offense, even a misdemeanor, will still render a noncitizen deportable as a controlled substances offender. 8 U. S. C. §1227(a)(2)(B)(i). At that point, having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, assuming he satisfies the other eligibility criteria. §§1158(b), 1229b(a)(1)–(2). But those forms of relief are discretionary. The Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a member of one “of the world’s most dangerous drug cartels,” post, at 2 (opinion of Alito, J.), just as he may deny relief if he concludes the negative equities outweigh the positive equities of the noncitizen’s case for other reasons. As a result, “to the extent that our rejection of the Government’s broad understanding of the scope of ‘aggravated felony’ may have any practical effect on policing our Nation’s borders, it is a limited one.” Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 17). In any event, serious drug traffickers may be adjudi- cated aggravated felons regardless, because they will likely be convicted under greater “trafficking” offenses that necessarily establish that more than a small amount of marijuana was involved. See, e.g., Ga. Code Ann. §16–13–31(c)(1) (Supp. 2012) (separate provision for trafficking in more than 10 pounds of marijuana). Of course, some offenders’ conduct will fall between §841(b)(4) conduct and the more serious conduct required to trigger a “trafficking” statute. Brief for Respondent 30. Those offenders may avoid aggravated felony status by operation of the categorical approach. But the Government’s objection to that underinclusive result is little more than an attack on the categorical approach itself.[11] We prefer this degree of imperfection to the heavy burden of relitigating old prosecutions. See supra, at 15–16. And we err on the side of underinclusiveness because ambiguity in criminal statutes referenced by the INA must be construed in the noncitizen’s favor. See Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 17); Leocal v. Ashcroft, 543 U.S. 1, 11, n. 8 (2004). Finally, the Government suggests that our holding will frustrate the enforcement of other aggravated felony provisions, like §1101(a)(43)(C), which refers to a federal firearms statute that contains an exception for “antique firearm[s],” 18 U. S. C. §921(a)(3). The Government fears that a conviction under any state firearms law that lacks such an exception will be deemed to fail the categorical inquiry. But Duenas-Alvarez requires that there be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” 549 U. S., at 193. To defeat the categorical comparison in this manner, a non- citizen would have to demonstrate that the State actu- ally prosecutes the relevant offense in cases involving an- tique firearms. Further, the Government points to §1101(a)(43)(P), which makes passport fraud an aggravated felony, except when the noncitizen shows he committed the offense to assist an immediate family member. But that exception is provided in the INA itself. As we held in Nijhawan, a circumstance-specific inquiry would apply to that provision, so it is not comparable. 557 U. S., at 37–38. * * * This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.” Once again we hold that the Government’s approach defies “the ‘commonsense conception’ ” of these terms. Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53). Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, “does not fit easily into the ‘everyday understanding’ ” of “trafficking,” which “ ‘ordinarily . . . means some sort of commercial dealing.’ ” Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53–54). Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misde- meanor should be designated an “aggravated felony.” We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA. The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 In addition to asylum, a noncitizen who fears persecution may seek withholding of removal, 8 U. S. C. §1231(b)(3)(A), and deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 85; 8 CFR §1208.17(a) (2012). These forms of relief require the noncitizen to show a greater likelihood of persecution or torture at home than is necessary for asylum, but the Attorney General has no discretion to deny relief to a noncitizen who establishes his eligibility. A conviction of an aggravated felony has no effect on CAT eligibility, but will render a noncitizen ineligible for withholding of removal if he “has been sentenced to an aggregate term of imprisonment of at least 5 years” for any aggravated felonies. 8 U. S. C. §1231(b)(3)(B). 2 The parties agree that this resolution of Moncrieffe’s Georgia case is nevertheless a “conviction” as the INA defines that term, 8 U. S. C. §1101(a)(48)(A). See Brief for Petitioner 6, n. 2; Brief for Respondent 5, n. 2. 3 Compare 662 F.3d 387 (CA5 2011) (case below), Garcia v. Holder, 638 F.3d 511 (CA6 2011) (is an aggravated felony), and Julce v. Mukasey, 530 F.3d 30 (CA1 2008) (same), with Martinez v. Mukasey, 551 F.3d 113 (CA2 2008) (is not an aggravated felony), and Wilson v. Ashcroft, 350 F.3d 377 (CA3 2003) (same). 4 Carachuri-Rosendo construed a different provision of the INA that concerns cancellation of removal, which also requires determining whether the noncitizen has been “convicted of any aggravated felony.” 8 U. S. C. §1229b(a)(3) (emphasis added). Our analysis is the same in both contexts. 5 In full, 21 U. S. C. §841(a)(1) provides, “Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— “(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . .” 6 In pertinent part, §§841(b)(1)(D) and (b)(4) (2006 ed. and Supp. V) provide, “Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows: . . . . . “[(1)](D) In the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight, 10 kilograms of hashish, or one kilogram of hashish oil, such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. . . . . . . . . “(4) Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of title 18.” 7 Although paragraph (4) speaks only of “distributing” marijuana, the parties agree that it also applies to “the more inchoate offense of possession with intent to distribute that drug.” Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 699, n. 2 (BIA 2012); see Brief for Petitioner 6, n. 2; Brief for Respondent 8, n. 5. The CSA does not define “small amount.” The BIA has suggested that 30 grams “serve[s] as a useful guidepost,” Castro Rodriguez, 25 I. & N. Dec., at 703, noting that the INA exempts from deportable controlled substances offenses “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U. S. C. §1227(a)(2)(B)(i). The meaning of “small amount” is not at issue in this case, so we need not, and do not, define the term. 8 Justice Alito states that the statute “obviously” requires examination of whether “conduct associated with the state offense . . . would have supported a qualifying conviction under the federal CSA.” Post, at 3 (dissenting opinion) (emphasis added); see also post, at 8. But this echoes the Fifth Circuit’s approach in Carachuri-Rosendo. As noted in the text, our opinion explicitly rejected such reasoning based on conditional perfect formulations. See also, e.g., Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 16) (criticizing approach that “focuses on facts known to the immigration court that could have but did not serve as the basis for the state conviction and punishment” (emphasis altered)). Instead, as we have explained, supra, at 10–11, our holding depended upon the fact that Carachuri-Rosendo’s conviction did not establish the fact necessary to distinguish between misdemeanor and felony punishment under the CSA. The same is true here. 9 The Government also cites 21 U. S. C. §885(a)(1), which provides that the Government need not “negative any exemption or exception set forth” in the CSA, and instead “the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.” Brief for Respondent 21. Even assuming §841(b)(4) is such an “exception,” §885(a)(1) applies, by its own terms, only to “any trial, hearing, or other proceeding under” the CSA itself, not to the rather different proceedings under the INA. 10 In addition to New York, it appears that 13 other States have separate offenses for §841(b)(4) conduct. See Cal. Health & Safety Code Ann. §11360(b) (West Supp. 2013); Colo. Rev. Stat. Ann. §18–18–406(5) (2012); Fla. Stat. §893.13(2)(b)(3) (2010); Ill. Comp. Stat., ch. 20, §§550/3, 550/4, 550/6 (West 2010); Iowa Code §124.410 (2009); Minn. Stat. §152.027(4)(a) (2010); N. M. Stat. Ann. §30–31–22(E) (Supp. 2011); Ohio Rev. Code Ann. §2925.03(C)(3)(h) (Lexis 2012 Cum. Supp.); Ore. Rev. Stat. §475.860(3) (2011); Pa. Stat. Ann., Tit. 35, §780–113(a)(31) (Purdon Supp. 2012); S. D. Codified Laws §22–42–7 (Supp. 2012); Tex. Health & Safety Code Ann. §481.120(b)(1) (West 2010); W. Va. Code Ann. §60A–4–402(c) (Lexis 2010). 11 Similarly, Justice Alito’s dissent suggests that he disagrees with the first premises of the categorical approach. He says it is a “strange and disruptive resul[t]” that “defendants convicted in different States for committing the same criminal conduct” might suffer different collateral consequences depending upon how those States define their statutes of conviction. Post, at 9. Yet that is the longstanding, natural result of the categorical approach, which focuses not on the criminal conduct a defendant “commit[s],” but rather what facts are necessarily established by a conviction for the state offense. Different state offenses will necessarily establish different facts. Some will track the “uni-form” federal definition of the generic offense, and some will not. Taylor v. United States, 495 U.S. 575, 590 (1990). Whatever disparity this may create as between defendants whose real-world conduct was the same, it ensures that all defendants whose convictions establish the same facts will be treated consistently, and thus predictably, under federal law. This was Taylor’s chief concern in adopting the categorical approach. See id., at 599–602.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MONCRIEFFE v. HOLDER, ATTORNEY GENERAL certiorari to the united states court of appeals for the fifth circuit No. 11–702. Argued October 10, 2012—Decided April 23, 2013 Under the Immigration and Nationality Act (INA), a noncitizen convicted of an “aggravated felony” is not only deportable, 8 U. S. C. §1227(a)(2)(A)(iii), but also ineligible for discretionary relief. The INA lists as an “aggravated felony” “illicit trafficking in a controlled substance,” §1101(a)(43)(B), which, as relevant here, includes the conviction of an offense that the Controlled Substances Act (CSA) makes punishable as a felony, i.e., by more than one year’s imprisonment, see 18 U. S. C. §§924(c)(2), 3559(a)(5). A conviction under state law “constitutes a ‘felony punishable under the [CSA]’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549 U.S. 47, 60. Petitioner Moncrieffe, a Jamaican citizen here legally, was found by police to have 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. The Federal Government sought to deport him, reasoning that his conviction was an aggravated felony because possession of marijuana with intent to distribute is a CSA offense, 21 U. S. C. §841(a), punishable by up to five years’ imprisonment, §841(b)(1)(D). An Immigration Judge ordered Moncrieffe removed, and the Board of Immigration Appeals affirmed. The Fifth Circuit denied Moncrieffe’s petition for review, rejecting his reliance on §841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration, and holding that the felony provision, §841(b)(1)(D), provides the default punishment for his offense. Held: If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA. . (a) Under the categorical approach generally employed to determine whether a state offense is comparable to an offense listed in the INA, see, e.g., Nijhawan v. Holder, 557 U.S. 29, 33–38, the noncitizen’s actual conduct is irrelevant. Instead “the state statute defining the crime of conviction” is examined to see whether it fits within the “generic” federal definition of a corresponding aggravated felony. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186. The state offense is a categorical match only if a conviction of that offense “ ‘necessarily’ involved . . . facts equating to [the] generic [federal offense].” Shepard v. United States, 544 U.S. 13, 24. Because this Court examines what the state conviction necessarily involved and not the facts underlying the case, it presumes that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized, before determining whether even those acts are encompassed by the generic federal offense. Johnson v. United States, 559 U.S. 133, 137. . (b) The categorical approach applies here because “illicit trafficking in a controlled substance” is a “generic crim[e].” Nijhawan, 557 U. S., at 37. Thus, a state drug offense must meet two conditions: It must “necessarily” proscribe conduct that is an offense under the CSA, and the CSA must “necessarily” prescribe felony punishment for that conduct. Possession of marijuana with intent to distribute is clearly a federal crime. The question is whether Georgia law necessarily proscribes conduct punishable as a felony under the CSA. Title 21 U. S. C. §841(b)(1)(D) provides that, with certain exceptions, a violation of the marijuana distribution statute is punishable by “a term of imprisonment of not more than 5 years.” However, one of those exceptions, §841(b)(4), provides that “any person who violates [the statute] by distributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor, i.e., as a misdemeanant. These dovetailing provisions create two mutually exclusive categories of punishment for CSA marijuana distribution offenses: one a felony, the other not. The fact of a conviction under Georgia’s statute, standing alone, does not reveal whether either remuneration or more than a small amount was involved, so Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. Thus, the conviction did not “necessarily” involve facts that correspond to an offense punishable as a felony under the CSA. . (c) The Government’s contrary arguments are unpersuasive. The Government contends that §841(b)(4) is irrelevant because it is merely a mitigating sentencing factor, not an element of the offense. But that understanding is inconsistent with Carachuri-Rosendo v. Holder, 560 U. S. ___, which recognized that when Congress has chosen to define the generic federal offense by reference to punishment, it may be necessary to take account of federal sentencing factors too. The Government also asserts that any marijuana distribution conviction is presumptively a felony, but the CSA makes neither the felony nor the misdemeanor provision the default. The Government’s approach would lead to the absurd result that a conviction under a statute that punishes misdemeanor conduct only, such as §841(b)(4) itself, would nevertheless be a categorical aggravated felony. The Government’s proposed remedy for this anomaly—that noncitizens be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration—is inconsistent with both the INA’s text and the categorical approach. The Government’s procedure would require the Nation’s overburdened immigration courts to conduct precisely the sort of post hoc investigation into the facts of predicate offenses long deemed undesirable, and would require uncounseled noncitizens to locate witnesses years after the fact. Finally, the Government’s concerns about the consequences of this decision are exaggerated. Escaping aggravated felony treatment does not mean escaping deportation, because any marijuana distribution offense will still render a noncitizen deportable as a controlled substances offender. Having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, but the Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a more serious drug trafficker. . 662 F.3d 387, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined. Thomas, J., and Alito, J., filed dissenting opinions.

The Immigration and Nationality Act (INA) provides that a noncitizen who has been convicted of an offense that the CSA makes punishable by more than one year's imprisonment may be deported from this country. But the Act also prohibits the Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case is. Among the crimes classified as aggravated felonies, and thus lead to these harsh consequences, are illicit drug trafficking offenses. Petitioner, a Jamaican citizen who came to the United States legally in 1984, when he was three, pleaded guilty to possession of marijuana with intent to distribute, a violation of Ga. Code Ann. §16–13–30(j)(1). Under a Georgia statute providing more lenient treatment to first-time offenders, the trial court withheld entering a judgment of conviction or imposing any term of imprisonment and instead required that petitioner complete five years of probation, after which his charge will be expunged altogether. The Government then sought to deport petitioner under §841(b)(1)(D), which makes marijuana distribution punishable only as a misdemeanor if the offense involves a small amount of marijuana for no remuneration. The Government reasoned that petitioner was guilty of an aggravated felony under §1115(a)(2)(A)(B), and thus was punishable with up to five years in prison. Applying a categorical approach, the Court of Appeals denied review on the basis of petitioner's Georgia offense, which, in effect, punishes all marijuana distribution without regard to the amount of the marijuana involved. Held: The Georgia offense does not include a state criminal statute that extends to the social sharing of marijuana. . (a) When the Government alleges that a state conviction qualifies as an "aggravated felony," this approach looks not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the "generic" federal definition of a corresponding aggravated felony. By that definition, the offenses must be viewed in the abstract, to see whether the statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state offense is a categorical match with a generic federal offense only if a conviction of the state offense "necessarily involved... facts equating to [the] generic [federal] offense." Shepard v. United States, 544 U.S. 13, 24 (plurality opinion). Here, the Georgia offense is distinguished from the related CSA offense by the fact that it is a simple possession, and not one of the generic federal offenses defined by the INA. Moreover, the facts giving rise to this offense establish a crime that may be either a felony or a misdemeanor, depending upon the presence or absence of certain factors that are not themselves elements of the crime. Thus, a conviction for the predicate offense must necessarily establish those factors as well. See, e.g., Carachuri-Rosendo v. Holder, 557 U. S., at ___ (slip op., at 10), n. 11. In addition to asylum and deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the parties agree that petitioner should be given an opportunity during immigration proceedings to demonstrate that his predicate marijuana distribution convictions involved only small amounts of marijuana, and that such convictions would categorically be convictions of the drug trafficking aggravated felony, i.e., a felony under the federal CSA. Although the Government concedes that the fact of a marijuana-distribution conviction alone constitutes a CSA felony, it cannot be said that such conviction is such an exception, since it applies, by its own terms, only to any trial, hearing, or other proceeding under, or to the rather different proceedings under, the Federal CSA itself. Similarly, the Government suggests that this holding will frustrate the enforcement of other aggravated felony provisions, such as §1101 (a)(43)(C), since noncitizens convicted of marijuana distribution offenses in those States will avoid such determinations, purely because their convictions do not resolve whether their offenses involved federal felony conduct or misdemeanor conduct, even though many (if not most) prosecutions involve either remunerations or larger amounts of marijuana (or both). Such a conviction does not mean escaping deportation, though it means only avoiding mandatory removal, and the burden is on the defendant to show that he qualifies for the lesser sentence under the statute. Even in that case, under the Government's logic, it would need to treat the federal misdemeanor conviction as an aggravated felony, because the conviction establishes elements of an unconstitutional offense that is presumptively a felony, this cannot be.. 662 F.3d 387, reversed and remanded. WHITE, J., wrote the opinion of the Court, in which BURGER, C.J., and BLACKMUN

2012_12-142

https://www.oyez.org/cases/2012/12-142

. We must decide whether federal law pre-empts the New Hampshire design-defect claim under which respondent Karen Bartlett recovered damages from petitioner Mutual Pharmaceutical, the manufacturer of sulindac, a generic nonsteroidal anti-inflammatory drug (NSAID). New Hampshire law imposes a duty on manufacturers to ensure that the drugs they market are not unreasonably unsafe, and a drug’s safety is evaluated by reference to both its chemical properties and the adequacy of its warnings. Because Mutual was unable to change sulindac’s composition as a matter of both federal law and basic chemistry, New Hampshire’s design-defect cause of action effectively required Mutual to change sulindac’s labeling to provide stronger warnings. But, as this Court recognized just two Terms ago in PLIVA, Inc. v. Mensing, 564 U. S. ___ (2011), federal law prohibits generic drug manufacturers from independently changing their drugs’ labels. Accordingly, state law imposed a duty on Mutual not to comply with federal law. Under the Supremacy Clause, state laws that require a private party to violate federal law are pre-empted and, thus, are “without effect.” Maryland v. Louisiana, 451 U. S. 725, 746 (1981) . The Court of Appeals’ solution—that Mutual should simply have pulled sulindac from the market in order to comply with both state and federal law—is no solution. Rather, adopting the Court of Appeals’ stop-selling rationale would render impossibility pre-emption a dead letter and work a revolution in this Court’s pre-emption case law. Accordingly, we hold that state-law design-defect claims that turn on the adequacy of a drug’s warnings are pre-empted by federal law under PLIVA. We thus reverse the decision of the Court of Appeals below. I Under the Federal Food, Drug, and Cosmetic Act (FDCA), ch. 675, 52Stat. 1040, as amended, 21 U. S. C. §301 et seq., drug manufacturers must gain approval from the United States Food and Drug Administration (FDA) before marketing any drug in interstate commerce. §355(a). In the case of a new brand-name drug, FDA approval can be secured only by submitting a new-drug application (NDA). An NDA is a compilation of materials that must include “full reports of [all clinical] investigations,” §355(b)(1)(A), relevant nonclinical studies, and “any other data or information relevant to an evaluation of the safety and effectiveness of the drug product obtained or otherwise received by the applicant from any source,” 21 CFR §§314.50(d)(2) and (5)(iv) (2012). The NDA must also include “the labeling proposed to be used for such drug,” 21 U. S. C. §355(b)(1)(F); 21 CFR §314.50(c)(2)(i), and “a discussion of why the [drug’s] benefits exceed the risks under the conditions stated in the labeling,” 21 CFR §314.50(d)(5)(viii); §314.50(c)(2)(ix). The FDA may approve an NDA only if it determines that the drug in question is “safe for use” under “the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof.” 21 U. S. C. §355(d). In order for the FDA to consider a drug safe, the drug’s “probable therapeutic benefits must outweigh its risk of harm.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 140 (2000) . The process of submitting an NDA is both onerous and lengthy. See Report to Congressional Requesters, Government Accountability Office, Nov. 2006, New Drug Development, 26 Biotechnology L. Rep. 82, 94 (2007) (A typical NDA spans thousands of pages and is based on clinical trials conducted over several years). In order to provide a swifter route for approval of generic drugs, Congress passed the Drug Price Competition and Patent Term Restoration Act of 1984, 98Stat. 1585, popularly known as the “Hatch-Waxman Act.” Under Hatch-Waxman, a generic drug may be approved without the same level of clinical testing required for approval of a new brand-name drug, provided the generic drug is identical to the already-approved brand-name drug in several key respects. First, the proposed generic drug must be chemically equivalent to the approved brand-name drug: it must have the same “active ingredient” or “active ingredients,” “route of administration,” “dosage form,” and “strength” as its brand-name counterpart. 21 U. S. C. §§355(j)(2)(A)(ii) and (iii). Second, a proposed generic must be “bioequivalent” to an approved brand-name drug. §355(j)(2)(A)(iv). That is, it must have the same “rate and extent of absorption” as the brand-name drug. §355(j)(8)(B). Third, the generic drug manufacturer must show that “the labeling proposed for the new drug is the same as the labeling approved for the [approved brand-name] drug.” §355(j)(2)(A)(v). Once a drug—whether generic or brand-name—is approved, the manufacturer is prohibited from making any major changes to the “qualitative or quantitative formulation of the drug product, including active ingredients, or in the specifications provided in the approved application.” 21 CFR §314.70(b)(2)(i). Generic manufacturers are also prohibited from making any unilateral changes to a drug’s label. See §§314.94(a)(8)(iii), 314.150(b)(10) (approval for a generic drug may be withdrawn if the generic drug’s label “is no longer consistent with that for [the brand-name] drug”). II In 1978, the FDA approved a nonsteroidal anti-inflammatory pain reliever called “sulindac” under the brand name Clinoril. When Clinoril’s patent expired, the FDA approved several generic sulindacs, including one manufactured by Mutual Pharmaceutical. 678 F. 3d 30, 34 (CA1 2012) (case below); App. to Pet. for Cert. 144a–145a. In a very small number of patients, NSAIDs—including both sulindac and popular NSAIDs such as ibuprofen, naproxen, and Cox2-inhibitors—have the serious side effect of causing two hypersensitivity skin reactions characterized by necrosis of the skin and of the mucous membranes: toxic epidermal necrolysis, and its less severe cousin, Stevens-Johnson Syndrome. 678 F. 3d, at 34, 43–44; Dorland’s Illustrated Medical Dictionary 1872 (31st ed. 2007); Physicians’ Desk Reference 146–147, 597 (6th ed. 2013); Friedman, Orlet, Still, & Law, Toxic Epidermal Necrolysis Due to Administration of Celecobix (Celebrex), 95 Southern Medical J. 1213, 1213–1214 (2002). In December 2004, respondent Karen L. Bartlett was prescribed Clinoril for shoulder pain. Her pharmacist dispensed a generic form of sulindac, which was manufactured by petitioner Mutual Pharmaceutical. Respondent soon developed an acute case of toxic epidermal necrolysis. The results were horrific. Sixty to sixty-five percent of the surface of respondent’s body deteriorated, was burned off, or turned into an open wound. She spent months in a medically induced coma, underwent 12 eye surgeries, and was tube-fed for a year. She is now severely disfigured, has a number of physical disabilities, and is nearly blind. At the time respondent was prescribed sulindac, the drug’s label did not specifically refer to Stevens-Johnson Syndrome or toxic epidermal necrolysis, but did warn that the drug could cause “severe skin reactions” and “[f]atalities.” App. 553; 731 F. Supp. 2d 135, 142 (NH 2010) (internal quotation marks omitted). However, Stevens-Johnson Syndrome and toxic epidermal necrolysis were listed as potential adverse reactions on the drug’s package insert. 678 F. 3d, at 36, n. 1. In 2005—once respondent was already suffering from toxic epidermal necrolysis—the FDA completed a “comprehensive review of the risks and benefits, [including the risk of toxic epidermal necrolysis], of all approved NSAID products.” Decision Letter, FDA Docket No. 2005P-0072/CP1, p. 2 (June 22, 2006), online at http://www.fda.gov/ohrms/dockets/ dockets/05p0072/05p-0072-pav0001-vol1.pdf (as visited June 18, 2013, and available in Clerk of Court’s case file). As a result of that review, the FDA recommended changes to the labeling of all NSAIDs, including sulindac, to more explicitly warn against toxic epidermal necrolysis. App. 353–354, 364, 557–561, 580, and n. 8. Respondent sued Mutual in New Hampshire state court, and Mutual removed the case to federal court. Respondent initially asserted both failure-to-warn and design-defect claims, but the District Court dismissed her failure-to-warn claim based on her doctor’s “admi[ssion] that he had not read the box label or insert.” 678 F. 3d, at 34. After a 2-week trial on respondent’s design-defect claim, a jury found Mutual liable and awarded respondent over $21 million in damages. The Court of Appeals affirmed. 678 F. 3d 30. As relevant, it found that neither the FDCA nor the FDA’s regulations pre-empted respondent’s design-defect claims. It distinguished PLIVA, Inc. v. Mensing, 564 U. S. ___ —in which the Court held that failure-to-warn claims against generic manufacturers are pre-empted by the FDCA’s prohibition on changes to generic drug labels—by arguing that generic manufacturers facing design-defect claims could simply “choose not to make the drug at all” and thus comply with both federal and state law. 678 F. 3d, at 37. We granted certiorari. 568 U. S. ___ (2012). III The Supremacy Clause provides that the laws and treaties of the United States “shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const., Art. VI, cl. 2. Accordingly, it has long been settled that state laws that conflict with federal law are “without effect.” Maryland v. Louisiana, 451 U. S., at 746; McCulloch v. Maryland, 4 Wheat. 316, 427 (1819). See also Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 108 (1992) (“[U]nder the Supremacy Clause, from which our pre-emption doctrine is derived, any state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield” (internal quotation marks omitted)). Even in the absence of an express pre-emption provision, the Court has found state law to be impliedly pre-empted where it is “impossible for a private party to comply with both state and federal requirements.” English v. General Elec. Co., 496 U. S. 72, 79 (1990) . See also Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 –143 (1963) (“A holding of federal exclusion of state law is inescapable and requires no inquiry into congressional design where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce”). In the instant case, it was impossible for Mutual to comply with both its state-law duty to strengthen the warnings on sulindac’s label and its federal-law duty not to alter sulindac’s label. Accordingly, the state law is pre-empted. A We begin by identifying petitioner’s duties under state law. As an initial matter, respondent is wrong in asserting that the purpose of New Hampshire’s design- defect cause of action “is compensatory, not regulatory.” Brief for Respondent 19. Rather, New Hampshire’s design-defect cause of action imposes affirmative duties on manufacturers. Respondent is correct that New Hampshire has adopted the doctrine of strict liability in tort as set forth in Section 402A of the Restatement (Second) of Torts. See 2 Restatement (Second) of Torts §402A (1963 and 1964) (hereinafter Restatement 2d). See Buttrick v. Arthur Lessard & Sons, Inc., 110 N. H. 36, 37–39, 260 A. 2d 111, 112–113 (1969). Under the Restatement—and consequently, under New Hampshire tort law—“[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused” even though he “has exercised all possible care in the preparation and sale of the product.” Restatement 2d §402A, at 347–348. But respondent’s argument conflates what we will call a “strict-liability” regime (in which liability does not depend on negligence, but still signals the breach of a duty) with what we will call an “absolute-liability” regime (in which liability does not reflect the breach of any duties at all, but merely serves to spread risk). New Hampshire has adopted the former, not the latter. Indeed, the New Hampshire Supreme Court has consistently held that the manu-facturer of a product has a “duty to design his product reasonably safely for the uses which he can foresee.” Thibault v. Sears, Roebuck & Co., 118 N. H. 802, 809, 395 A. 2d 843, 847 (1978). See also Reid v. Spadone Mach. Co., 119 N. H. 457, 465, 404 A. 2d 1094, 1099 (1979) (“In New Hampshire, the manufacturer is under a general duty to design his product reasonably safely for the uses which he can foresee” (internal quotation marks omitted)); Chellman v. Saab-Scania AB, 138 N. H. 73, 78, 637 A. 2d 148, 150 (1993) (“The duty to warn is part of the general duty to design, manufacture and sell products that are reasonably safe for their foreseeable uses”); cf. Simoneau v. South Bend Lathe, Inc., 130 N. H. 466, 469, 543 A. 2d 407, 409 (1988) (“We limit the application of strict tort liability in this jurisdiction by continuing to emphasize that liability without negligence is not liability without fault”); Price v. BIC Corp., 142 N. H. 386, 390, 702 A. 2d 330, 333 (1997) (cautioning “that the term ‘unreasonably dangerous’ should not be interpreted so broadly as to impose absolute liability on manufacturers or make them insurers of their products”). Accordingly, respondent is incorrect in arguing that New Hampshire’s strict-liability system “imposes no substantive duties on manufacturers.” Brief for Respondent 19. [ 1 ] B That New Hampshire tort law imposes a duty on manufacturers is clear. Determining the content of that duty requires somewhat more analysis. As discussed below in greater detail, New Hampshire requires manufacturers to ensure that the products they design, manufacture, and sell are not “unreasonably dangerous.” The New Hampshire Supreme Court has recognized that this duty can be satisfied either by changing a drug’s design or by changing its labeling. Since Mutual did not have the option of changing sulindac’s design, New Hampshire law ultimately required it to change sulindac’s labeling. Respondent argues that, even if New Hampshire law does impose a duty on drug manufacturers, that duty does not encompass either the “duty to change sulindac’s design” or the duty “to change sulindac’s labeling.” Brief for Respondent 30 (capitalization and emphasis deleted). That argument cannot be correct. New Hampshire imposes design-defect liability only where “the design of the product created a defective condition unreasonably dangerous to the user.” Vautour v. Body Masters Sports Industries, Inc., 147 N. H. 150, 153, 784 A. 2d 1178, 1181 (2001); Chellman, supra, at 77, 637 A. 2d, at 150. To determine whether a product is “unreasonably dangerous,” the New Hampshire Supreme Court employs a “risk-utility approach” under which “a product is defective as designed if the magnitude of the danger outweighs the utility of the product.” Vautour, supra, at 154, 784 A. 2d, at 1182 (internal quotation marks omitted). That risk-utility approach requires a “multifaceted balancing process involving evaluation of many conflicting factors.” Ibid. (internal quotation marks omitted); see also Thibault, supra, at 809, 395 A. 2d, at 847 (same). While the set of factors to be considered is ultimately an open one, the New Hampshire Supreme Court has repeatedly identified three factors as germane to the risk-utility inquiry: “the usefulness and desirability of the product to the public as a whole, whether the risk of danger could have been reduced without significantly affecting either the product’s effectiveness or manufacturing cost, and the presence and efficacy of a warning to avoid an unreasonable risk of harm from hidden dangers or from foreseeable uses.” Vautour, supra, at 154, 784 A. 2d, at 1182; see also Price, supra, at 389, 702 A. 2d, at 333 (same); Chellman, supra, at 77–78, 637 A. 2d, at 150 (same). In the drug context, either increasing the “usefulness” of a product or reducing its “risk of danger” would require redesigning the drug: A drug’s usefulness and its risk of danger are both direct results of its chemical design and, most saliently, its active ingredients. See 21 CFR §201.66(b)(2) (2012) (“Active ingredient means any component that is intended to furnish pharmacological activity or other direct effect in the diagnosis, cure, mitiga- tion, treatment, or prevention of disease, or to affect the structure of any function of the body of humans” (italics deleted)). In the present case, however, redesign was not possible for two reasons. First, the FDCA requires a generic drug to have the same active ingredients, route of adminis-tration, dosage form, strength, and labeling as the brand-name drug on which it is based. 21 U. S. C. §§355(j)(2)(A)(ii)–(v) and (8)(B); 21 CFR §320.1(c). Consequently, the Court of Appeals was correct to recognize that “Mutual cannot legally make sulindac in another composition.” 678 F. 3d, at 37. Indeed, were Mutual to change the composition of its sulindac, the altered chemical would be a new drug that would require its own NDA to be marketed in interstate commerce. See 21 CFR §310.3(h) (giving examples of when the FDA considers a drug to be new, including cases involving “newness for drug use of any substance which composes such drug, in whole or in part”). Second, because of sulindac’s simple composition, the drug is chemically incapable of being redesigned. See 678 F. 3d, at 37 (“Mutual cannot legally make sulindac in another composition (nor it is apparent how it could alter a one-molecule drug anyway)”). Given the impossibility of redesigning sulindac, the only way for Mutual to ameliorate the drug’s “risk-utility” profile—and thus to escape liability—was to strengthen “the presence and efficacy of [sulindac’s] warning” in such a way that the warning “avoid[ed] an unreasonable risk of harm from hidden dangers or from foreseeable uses.” Vautour, supra, at 154, 784 A. 2d, at 1182. See also Chellman, 138 N. H., at 78, 637 A. 2d, at 150 (“The duty to warn is part of the general duty to design, manufacture and sell products that are reasonably safe for their foreseeable uses. If the design of a product makes a warning necessary to avoid an unreasonable risk of harm from a foreseeable use, the lack of warning or an ineffective warning causes the product to be defective and unreasonably dangerous” (citation omitted)). Thus, New Hampshire’s design-defect cause of action imposed a duty on Mutual to strengthen sulindac’s warnings. For these reasons, it is unsurprising that allegations that sulindac’s label was inadequate featured prominently at trial. Respondent introduced into evidence both the label for Mutual’s sulindac at the time of her injuries and the label as revised in 2005 (after respondent had suffered her injuries). App. 553–556. Her counsel’s opening statement informed the jury that “the evidence will show you that Sulindac was unreasonably dangerous and had an inadequate warning, as well. . . . You will hear much more evidence about why this label was inadequate in relation to this case.” Tr. 110–112 (Aug. 17, 2010). And, the District Court repeatedly instructed the jury that it should evaluate sulindac’s labeling in determining whether Mutual’s sulindac was unreasonably dangerous. See App. 514 (jury instruction that the jury should find “a defect in design” only if it found that “Sulindac was unreasonably dangerous and that a warning was not present and effective to avoid that unreasonable danger”); ibid. (jury instruction that no design defect exists if “a warning was present and effective to avoid that unreasonable danger”). Finally, the District Court clarified in its order and opinion denying Mutual’s motion for judgment as a matter of law that the adequacy of sulindac’s labeling had been part of what the jury was instructed to consider. 760 F. Supp. 2d 220, 231 (2011) (“if the jury found that sulin-dac’s risks outweighed its benefits, then it could consider whether the warning—regardless of its adequacy—re-duced those risks . . . to such an extent that it eliminated the unreasonable danger”). [ 2 ] Thus, in accordance with New Hampshire law, the jury was presented with evidence relevant to, and was instructed to consider, whether Mutual had fulfilled its duty to label sulindac adequately so as to render the drug not “unreasonably dangerous.” In holding Mutual liable, the jury determined that Mutual had breached that duty. C The duty imposed by federal law is far more readily apparent. As PLIVA made clear, federal law prevents generic drug manufacturers from changing their labels. See 564 U. S., at ___ (slip op., at 10) (“Federal drug regulations, as interpreted by the FDA, prevented the Manufacturers from independently changing their generic drugs’ safety labels”). See also 21 U. S. C. §355(j)(2)(A)(v) (“[T]he labeling proposed for the new drug is the same as the labeling approved for the [approved brand-name] drug”); 21 CFR §§314.94(a)(8)(iii), 314.150(b)(10) (approval for a generic drug may be withdrawn if the generic drug’s label “is no longer consistent with that for [the brand-name] drug”). Thus, federal law prohibited Mutual from taking the remedial action required to avoid liability under New Hampshire law. D When federal law forbids an action that state law requires, the state law is “without effect.” Maryland, 451 U. S., at 746. Because it is impossible for Mutual and other similarly situated manufacturers to comply with both state and federal law, [ 3 ] New Hampshire’s warning-based design-defect cause of action is pre-empted with respect to FDA-approved drugs sold in interstate commerce. [ 4 ] IV The Court of Appeals reasoned that Mutual could escape the impossibility of complying with both its federal- and state-law duties by “choos[ing] not to make [sulindac] at all.” 678 F. 3d, at 37. We reject this “stop-selling” rationale as incompatible with our pre-emption jurisprudence. Our pre-emption cases presume that an actor seeking to satisfy both his federal- and state-law obligations is not required to cease acting altogether in order to avoid liability. Indeed, if the option of ceasing to act defeated a claim of impossibility, impossibility pre-emption would be “all but meaningless.” 564 U. S., at ___ (slip op., at 14). The incoherence of the stop-selling theory becomes plain when viewed through the lens of our previous cases. In every instance in which the Court has found impossibility pre-emption, the “direct conflict” between federal- and state-law duties could easily have been avoided if the regulated actor had simply ceased acting. PLIVA is an obvious example: As discussed above, the PLIVA Court held that state failure-to-warn claims were pre-empted by the FDCA because it was impossible for drug manufacturers like PLIVA to comply with both the state-law duty to label their products in a way that rendered them reasonably safe and the federal-law duty not to change their drugs’ labels. Id., at ___ (slip op., at 11). It would, of course, have been possible for drug manufacturers like PLIVA to pull their products from the market altogether. In so doing, they would have avoided liability under both state and federal law: such manufacturers would neither have labeled their products in a way that rendered them unsafe nor impermissibly changed any federally approved label. In concluding that “it was impossible for the Manufacturers to comply with both their state-law duty to change the label and their federal law duty to keep the label the same,” id., at ___ (slip op., at 12), the Court was undeterred by the prospect that PLIVA could have complied with both state and federal requirements by simply leaving the market. The Court of Appeals decision below had found that Mensing’s state-law failure-to-warn claims escaped pre-emption based on the very same stop-selling rationale the First Circuit relied on in this case. See Mensing v. Wyeth, Inc., 588 F. 3d 603, 611 (CA8 2009) (“[G]eneric defendants were not compelled to market metoclopramide. If they realized their label was insufficient . . . they could have simply stopped selling the product”). Moreover, Mensing advanced the stop-selling rationale in its petition for rehearing, which this Court denied. PLIVA, supra; Pet. for Reh’g in No. 09–993 etc., p. 2. Nonetheless, this Court squarely determined that it had been “impossible” for PLIVA to comply with both its state and federal duties. 564 U. S., at ___ (slip op., at 12). [ 5 ] Adopting the First Circuit’s stop-selling rationale would mean that not only PLIVA, but also the vast majority—if not all—of the cases in which the Court has found impossibility pre-emption, were wrongly decided. Just as the prospect that a regulated actor could avoid liability under both state and federal law by simply leaving the market did not undermine the impossibility analysis in PLIVA, so it is irrelevant to our analysis here. V The dreadful injuries from which products liabilities cases arise often engender passionate responses. Today is no exception, as Justice Sotomayor’s dissent (hereinafter the dissent) illustrates. But sympathy for respondent does not relieve us of the responsibility of following the law. The dissent accuses us of incorrectly assuming “that federal law gives pharmaceutical companies a right to sell a federally approved drug free from common-law liability,” post, at 1, but we make no such assumption. Rather, as discussed at length above, see supra, at 8–13, we hold that state-law design-defect claims like New Hampshire’s that place a duty on manufacturers to render a drug safer by either altering its composition or altering its labeling are in conflict with federal laws that prohibit manufacturers from unilaterally altering drug composition or labeling. The dissent is quite correct that federal law establishes no safe-harbor for drug companies—but it does prevent them from taking certain remedial measures. Where state law imposes a duty to take such remedial measures, it “actual[ly] conflict[s] with federal law” by making it “ ‘impos-sible for a private party to comply with both state and federal requirements.’ ” Freightliner Corp. v. Myrick, 514 U. S. 280, 287 (1995) (quoting English, 496 U. S., at 78–79). The dissent seems to acknowledge that point when it concedes that, “if federal law requires a particular product label to include a complete list of ingredients while state law specifically forbids that labeling practice, there is little question that state law ‘must yield.’ ” Post, at 6–7 (quoting Felder v. Casey, 487 U. S. 131, 138 (1988) ). What the dissent does not see is that that is this case: Federal law requires a very specific label for sulindac, and state law forbids the use of that label. The dissent responds that New Hampshire law “merely create[s] an incentive” to alter sulindac’s label or composition, post, at 7, but does not impose any actual “legal obligation,” post, at 13. The contours of that argument are difficult to discern. Perhaps the dissent is drawing a distinction between common-law “exposure to liability,” post, at 12, and a statutory “legal mandate,” ibid. But the distinction between common law and statutory law is irrelevant to the argument at hand: In violating a common-law duty, as surely as by violating a statutory duty, a party contravenes the law. While it is true that, in a certain sense, common-law duties give a manufacturer the choice “between exiting the market or continuing to sell while knowing it may have to pay compensation to consumers injured by its product,” post, at 16, statutory “mandate[s]” do precisely the same thing: They require a manufacturer to choose between leaving the market and accepting the consequences of its actions (in the form of a fine or other sanction). See generally Calabresi & Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972) (discussing liability rules). And, in any event, PLIVA—which the dissent agrees involved a state-law “requirement that conflicted with federal law,” post, at 13—dealt with common-law failure-to-warn claims, see PLIVA, supra, at ___ (slip op., at 4). Because PLIVA controls the instant case, the dissent is reduced to fighting a rearguard action against its reasoning despite ostensibly swearing fealty to its holding. To suggest that Bates v. Dow Agrosciences LLC, 544 U. S. 431 (2005) , is to the contrary is simply misleading. The dissent is correct that Bates held a Texas state-law design-defect claim not to be pre-empted. But, it did so because the design-defect claim in question was not a “requirement ‘for labeling or packaging’ ” and thus fell outside the class of claims covered by the express pre-emption provision at issue in that case. Id., at 443–444 (emphasis in original). Indeed, contrary to the impression one might draw from the dissent, post, at 12–13, the Bates Court actually blessed the lower court’s determination that the State’s design-defect claim imposed a pre-emptable “requirement”: “The Court of Appeals did, however, correctly hold that the term ‘requirements’ in §136v(b) reaches beyond positive enactments, such as statutes and regulations, to embrace common-law duties.” Bates, supra, at 443. The dissent offers no compelling reason why the “common-law duty” in this case should not similarly be viewed as a “requirement.” We agree, of course, that “determining precisely what, if any, specific requirement a state common-law claim imposes is important.” Post, at 12, n. 5. As Bates makes clear, “[t]he proper inquiry calls for an examination of the elements of the common-law duty at issue; it does not call for speculation as to whether a jury verdict will prompt the manu-facturer to take any particular action.” 544 U. S., at 445 (citation omitted). Here, as we have tried to make clear, the duty to ensure that one’s products are not “unreasonably dangerous” imposed by New Hampshire’s design-defect cause of action, Vautour, 147 N. H., at 153, 784 A. 2d, at 1181, involves a duty to make one of several changes. In cases where it is impossible—in fact or by law—to alter a product’s design (and thus to increase the product’s “usefulness” or decrease its “risk of danger”), the duty to render a product “reasonably safe” boils down to a duty to ensure “the presence and efficacy of a warning to avoid an unreasonable risk of harm from hidden dangers or from foreseeable uses.” Id., at 154, 784 A. 2d, at 1182. The duty to redesign sulindac’s label was thus a part of the common-law duty at issue—not merely an action Mutual might have been prompted to take by the adverse jury verdict here. Finally, the dissent laments that we have ignored “Congress’ explicit efforts to preserve state common-law liability.” Post, at 26. We have not. Suffice to say, the Court would welcome Congress’ “explicit” resolution of the difficult pre-emption questions that arise in the prescription drug context. That issue has repeatedly vexed the Court—and produced widely divergent views—in recent years. See, e.g., Wyeth v. Levine, 555 U. S. 555 (2009) ; PLIVA, 564 U. S. ___. As the dissent concedes, however, the FDCA’s treatment of prescription drugs includes neither an express pre-emption clause (as in the vaccine context, 42 U. S. C. §300aa–22(b)(1)), nor an express non-pre-emption clause (as in the over-the-counter drug context, 21 U. S. C. §§379r(e), 379s(d)). In the absence of that sort of “explicit” expression of congressional intent, we are left to divine Congress’ will from the duties the statute imposes. That federal law forbids Mutual to take actions required of it by state tort law evinces an intent to pre-empt. * * * This case arises out of tragic circumstances. A combination of factors combined to produce the rare and devastating injuries that respondent suffered: the FDA’s decision to approve the sale of sulindac and the warnings that accompanied the drug at the time it was prescribed, the decision by respondent’s physician to prescribe sulindac despite its known risks, and Congress’ decision to regulate the manufacture and sale of generic drugs in a way that reduces their cost to patients but leaves generic drug manufacturers incapable of modifying either the drugs’ compositions or their warnings. Respondent’s situation is tragic and evokes deep sympathy, but a straightforward application of pre-emption law requires that the judgment below be reversed. It is so ordered. Notes 1 We can thus save for another day the question whether a trueabsolute-liability state-law system could give rise to impossibilitypre-emption. As we have noted, most common-law causes of action for negligence and strict liability do not exist merely to spread risk, but rather impose affirmative duties. See Riegel v. Medtronic, Inc., –324 (2008) (“In [Medtronic, Inc. v. Lohr, ], five Justices concluded that common-law causes of action for negligence and strict liability do impose ‘requirement[s]’ and would be pre-empted by federal requirements specific to a medical device. . . . We adhere to that view”); id., at 324 (“Absent other indication, reference to a State’s ‘requirements’ includes its common-law duties. As the plurality opinion said in Cipollone [v. Liggett Group, (1992)], common-law liability is ‘premised on the existence of a legal duty,’ and a tort judgment therefore establishes that the defendant has violated a state-law obligation”). 2 That Mutual’s liability turned on the adequacy of sulindac’s warnings is not unusual. Rather, New Hampshire—like a large majority of States—has adopted comment k to §402A of the Restatement (Second) of Torts, which recognizes that it is “especially common in the field of drugs” for products to be “incapable of being made safe for their intended and ordinary use.” Restatement 2d, at 353; Bellotte v. Zayre Corp.,116 N. H. 52, 54–55, 352 A. 2d 723, 725 (1976). Under comment k, “[s]uch a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.” Restatement 2d, at 353–354. This Court has previously noted that, as of 1986, “a large number of courts” took comment k to mean that manufacturers “did not face strict liability for side effects of properly manufactured prescription drugs that were accompanied by adequate warnings.” Bruesewitz v. Wyeth, 562 U. S. ___, ___, n. 41 (2011) (slip op., at 10, n. 41). Mutual withdrew its comment k defense “for purposes of the trial of this matter.” Defendant’s Notice of Withdrawal of Defenses, in Case No. 08–cv–358–JL (D NH), p. 1. However, as noted above, bothrespondent and the trial court injected the broader question of the adequacy of sulindac’s label into the trial proceedings. 3 Justice Breyer argues that it is not “literally impossible” for Mutual to comply with both state and federal law because it could escape liability “either by not doing business in the relevant State or by paying the state penalty, say damages, for failing to comply with, as here, a state-law tort standard.” Post, at 1 (dissenting opinion). But, as dis-cussed below, infra, at 15–16—leaving aside the rare case in which state or federal law actually requires a product to be pulled from the market—our pre-emption cases presume that a manufacturer’s ability to stop selling does not turn impossibility into possibility. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, (There would be “impossibility of dual compliance” where “federal orders forbade the picking and marketing of any avocado testingmore than 7% oil, while the California test excluded from the State any avocado measuring less than 8% oil content”). And, of course, PLIVA, Inc. v. Mensing, 564 U. S. ___ (2011), forecloses any argument that impossibility is defeated by the prospect that a manufacturer could “pa[y] the state penalty” for violating a state-law duty; that prospect would have defeated impossibility in PLIVA as well. See id., at ___ (slip op., at 12) (“[I]t was impossible for the Manufacturers to comply with both their state-law duty to change the label and their federal law duty to keep the label the same”). To hold otherwise would render impossibility pre-emption “all but meaningless.” Id., at ___ (slip op.,at 14). 4 We do not address state design-defect claims that parallel the federal misbranding statute. The misbranding statute requires a manufac-turer to pull even an FDA-approved drug from the market when it is “dangerous to health” even if “used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof.” ; cf. Bates v. Dow Agrosciences LLC, (state-law pesticide labeling requirement not pre-empted under express pre-emption provision, provided it was “equivalent to, and fully consistent with, [federal] misbranding provisions”). The parties and the Government appear to agree that a drug is misbranded under federal law only when liability is based on new and scientifically significant information that was not before the FDA. Because the jury was not asked to find whether new evidence concerning sulindac that had not been made available to the FDA rendered sulindac so dangerous as to be misbranded under the federal misbranding statute, the misbranding provision is not applicable here. Cf. 760 F. Supp. 2d 220, 233 (NH 2011) (most of respondent’s experts’ testimony was “drawn directly from the medical literature or published FDA analyses”). 5 Respondent attempts to distinguish this case from PLIVA, arguing that “[w]here, as in PLIVA, state law imposes an affirmative duty on a manufacturer to improve the product’s label, suspending sales does not comply with the state-law duty; it merely offers an indirect means of avoiding liability for noncompliance with that duty.” Brief for Respondent 39. But that difference is purely semantic: the state-law duty in PLIVA to amend metoclopramide’s label could just as easily have been phrased as a duty not to sell the drug without adequate warnings. At least where a State imposes liability based on a balancing of a product’s harms and benefits in light of its labeling—rather than directly prohibiting the product’s sale—the mere fact that a manufacturer may avoid liability by leaving the market does not defeat a claim of impossibility.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MUTUAL PHARMACEUTICAL CO., INC. v. BARTLETT certiorari to the united states court of appeals for the first circuit No. 12–142. Argued March 19, 2013—Decided June 24, 2013 The Federal Food, Drug, and Cosmetic Act (FDCA) requires manufacturers to gain Food and Drug Administration (FDA) approval before marketing any brand-name or generic drug in interstate commerce. 21 U. S. C. §355(a). Once a drug is approved, a manufacturer is prohibited from making any major changes to the “qualitative or quantitative formulation of the drug product, including active ingredients, or in the specifications provided in the approved application.” 21 CFR §314.70(b)(2)(i). Generic manufacturers are also prohibited from making any unilateral changes to a drug’s label. See §§314.94(a)(8)(iii), 314.150(b)(10). In 2004, respondent was prescribed Clinoril, the brand-name version of the nonsteroidal anti-inflammatory drug (NSAID) sulindac, for shoulder pain. Her pharmacist dispensed a generic form of sulindac manufactured by petitioner Mutual Pharmaceutical. Respondent soon developed an acute case of toxic epidermal necrolysis. She is now severely disfigured, has physical disabilities, and is nearly blind. At the time of the prescription, sulindac’s label did not specifically refer to toxic epidermal necrolysis. By 2005, however, the FDA had recommended changing all NSAID labeling to contain a more explicit toxic epidermal necrolysis warning. Respondent sued Mutual in New Hampshire state court, and Mutual removed the case to federal court. A jury found Mutual liable on respondent’s design-defect claim and awarded her over $21 million. The First Circuit affirmed. As relevant, it found that neither the FDCA nor the FDA’s regulations pre-empted respondent’s design-defect claim. It distinguished PLIVA, Inc. v. Mensing, 564 U. S. ___—in which the Court held that failure-to-warn claims against generic manufacturers are pre-empted by the FDCA’s prohibition on changes to generic drug labels—by arguing that generic manufacturers facing design-defect claims could comply with both federal and state law simply by choosing not to make the drug at all. Held: State-law design-defect claims that turn on the adequacy of a drug’s warnings are pre-empted by federal law under PLIVA. . (a) Under the Supremacy Clause, state laws that conflict with federal law are “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746. Even in the absence of an express pre-emption provision, a state law may be impliedly pre-empted where it is “impossible for a private party to comply with both state and federal requirements.” English v. General Elec. Co., 496 U.S. 72, 79. Here, it is impossible for Mutual to comply with both its federal-law duty not to alter sulindac’s label or composition and its state-law duty to either strengthen the warnings on sulindac’s label or change sulindac’s design. . (1) New Hampshire’s design-defect cause of action imposes affirmative duties on manufacturers, including a “duty to design [their products] reasonably safely for the uses which [they] can foresee.” Thibault v. Sears, Roebuck & Co., 118 N. H. 802, 809, 395 A.2d 843, 847. . (2) To assess whether a product’s design is “unreasonably dangerous to the user,” Vautour v. Body Masters Sports Industries, Inc., 147 N. H. 150, 153, 784 A.2d 1178, 1181, the New Hampshire Supreme Court employs a “risk-utility approach,” which asks whether the danger’s magnitude outweighs the product’s utility, id., at 154, 784 A. 2d, at 1182. The court has repeatedly identified three factors as germane to that inquiry: “the usefulness and desirability of the product to the public as a whole, whether the risk of danger could have been reduced without significantly affecting either the product’s effectiveness or manufacturing cost, and the presence and efficacy of a warning to avoid an unreasonable risk of harm from hidden dangers or from foreseeable uses.” Ibid. Increasing a drug’s “usefulness” or reducing its “risk of danger” would require redesigning the drug, since those factors are direct results of a drug’s chemical design and active ingredients. Here, however, redesign was not possible for two reasons. First, the FDCA requires a generic drug to have the same active ingredients, route of administration, dosage form, strength, and labeling as its brand-name drug equivalent. Second, because of sulindac’s simple composition, the drug is chemically incapable of being redesigned. Accordingly, because redesign was impossible, Mutual could only ameliorate sulindac’s “risk-utility” profile by strengthening its warnings. Thus, New Hampshire’s law ultimately required Mutual to change sulindac’s labeling. . (3) But PLIVA makes clear that federal law prevents generic drug manufacturers from changing their labels. See 564 U. S., at ___. Accordingly, Mutual was prohibited from taking the remedial action required to avoid liability under New Hampshire law. P. 13. (4) When federal law forbids an action required by state law, the state law is “without effect.” Maryland, supra, at 746. Because it was impossible for Mutual to comply with both state and federal law, New Hampshire’s warning-based design-defect cause of action is pre-empted with respect to FDA-approved drugs sold in interstate commerce. . (b) The First Circuit’s rationale—that Mutual could escape the impossibility of complying with both its federal- and state-law duties by choosing to stop selling sulindac—is incompatible with this Court’s pre-emption cases, which have presumed that an actor seeking to satisfy both federal- and state-law obligations is not required to cease acting altogether. . 678 F.3d 30, reversed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Breyer, J., filed a dissenting opinion, in which Kagan, J., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined.

New Hampshire law imposes a duty on manufacturers to ensure that the drugs they market are not unreasonably unsafe, and a drug's safety is evaluated by reference to both its chemical properties and the adequacy of its warnings. Because petitioner Mutual Pharmaceutical, the manufacturer of sulindac, a generic nonsteroidal anti-inflammatory drug (NSAID), was unable to change the drug's composition as a matter of both federal law and basic chemistry, New Hampshire design-defect causes of action effectively required it to change its labeling to provide stronger warnings. But, as this Court recognized just two years ago in PLIVA, Inc. v. Mensing, 564 U. S. ___ (2011), federal law prohibits generic drug manufacturers from independently changing their drugs' labels. Accordingly, state law imposed the duty on Mutual not to comply with federal law. The Court of Appeals affirmed. Held: State-law design-Defect claims that turn on the inadequacy of a drug manufacturer's warnings are pre-empted by federal law under the Supremacy Clause. . (a) Even in the absence of an express pre-emption provision, this Court has found that state laws that require a private party to violate federal law are preempted and, thus, are without effect. P.. (b) New Hampshire has adopted the doctrine of strict liability in tort as set forth in § 402A of the Restatement (Second) of Torts, and thus imposes an affirmative duty on petitioner to strengthen the warnings on its drugs. To determine whether a product is "unreasonably dangerous," the New Hampshire Supreme Court has repeatedly identified three factors as germane to the risk-utility inquiry: (1) the inquiry of whether the product is defective as designed if the magnitude of the danger outweighs the utility of the product; (2) whether the danger of injury could have been reduced without a defective product; and (3) whether, in a given situation, the presence or absence of a defect in the design could have reduced the risk of harm and thereby eliminated the risks of injury. In the present case, it was impossible for Mutual to comply with both its state-law duty to strengthen its label and its federal law duty not to alter its label. Accordingly, the state law is pre-pre-empting. ;; 678 F. 3d 30, reversed. JUSTICE SCALIA concluded that: 1. New Hampshire, which has adopted a strict-liability regime, imposes an explicit duty on the manufacturer to prevent generic manufacturers from changing their labels. New Hampshire is not precluded by the fact that the FDCA requires a generic drug to have the same active ingredients, route of adminis-tration, dosage form, strength, and labeling as the brand-name drug on which it is based. Here, federal law prevents generic drug manufacturer from changing its labels, and since it is impossible for petitioner to meet both state and federal law by simply avoiding liability under New Hampshire law, there is no reason to believe that New Hampshire does not impose no substantive duties on manufacturers. Moreover, it is unnecessary to address the question whether a manufacturer could have avoided liability under both federal and state law simply by simply leaving the market. Although it would have been possible for drug manufacturers to pull their products from the market altogether, the possibility of impossibility preemption is defeated by the prospect that a manufacturer might suffer the consequences of its actions (in the form of a fine or other sanction), which would have defeated impossibility if the regulated actor had simply ceased acting. See, e.g., Florida Lime & Avocado Growers, Inc., 110 N. H. 36, 37–39; Wyeth v. Arthur Lessard  Gates Inc., 1114 U.S. 260, 1125 F.2d 1127 (CA1), and Wyeth, supra, at ___ (slip op., at 11). Pp. 442 U. N.Y.2-113. 2. The duty imposed by the federal law is far more readily apparent. Federal law, as well as New Hampshire-imposed comment k to §402A, which recognizes that it is especially common in the field of drugs for products to be "incapable of being made safe for their intended and ordinary use," prevents generic manufacturers, such as petitioner Mutual, from altering their labels and labeling. Given the impossibility of redesigning the label, the only way for petitioner, as a manufacturer, to ameliorate the drug, so as to escape liability, was to strengthen, not merely an action petitioner might have been prompted to take by the adverse jury verdict in this case. Respondent introduced into evidence both the label for respondent's drug and the label as revised in 2005 (after respondent had suffered her injuries), and respondent introduced her product in evidence both at the time of her injuries. She introduced the label in

2012_12-135

https://www.oyez.org/cases/2012/12-135

. Class arbitration is a matter of consent: An arbitrator may employ class procedures only if the parties have au-thorized them. See Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 684 (2010). In this case, an arbitrator found that the parties’ contract provided for class arbitration. The question presented is whether in doing so he “exceeded [his] powers” under §10(a)(4) of the Federal Arbitration Act (FAA or Act), 9 U. S. C. §1 et seq. We conclude that the arbitrator’s decision survives the limited judicial review §10(a)(4) allows. I Respondent John Sutter, a pediatrician, entered into a contract with petitioner Oxford Health Plans, a health in-surance company. Sutter agreed to provide medical care to members of Oxford’s network, and Oxford agreed to pay for those services at prescribed rates. Several years later, Sutter filed suit against Oxford in New Jersey Superior Court on behalf of himself and a proposed class of other New Jersey physicians under contract with Oxford. The complaint alleged that Oxford had failed to make full and prompt payment to the doctors, in violation of their agree-ments and various state laws. Oxford moved to compel arbitration of Sutter’s claims, relying on the following clause in their contract: “No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration in New Jersey, pursuant to the rules of the American Arbitration Association with one arbitrator.” App. 15–16. The state court granted Oxford’s motion, thus referring the suit to arbitration. The parties agreed that the arbitrator should decide whether their contract authorized class arbitration, and he determined that it did. Noting that the question turned on “construction of the parties’ agreement,” the arbitrator focused on the text of the arbitration clause quoted above. Id., at 30. He reasoned that the clause sent to arbitration “the same universal class of disputes” that it barred the parties from bringing “as civil actions” in court: The “intent of the clause” was “to vest in the arbitration process everything that is prohibited from the court process.” Id., at 31. And a class action, the arbitrator continued, “is plainly one of the possible forms of civil action that could be brought in a court” absent the agreement. Ibid. Accordingly, he concluded that “on its face, the arbitration clause . . . expresses the parties’ intent that class arbitration can be maintained.” Id., at 32. Oxford filed a motion in federal court to vacate the arbitrator’s decision on the ground that he had “exceeded [his] powers” under §10(a)(4) of the FAA. The District Court denied the motion, and the Court of Appeals for the Third Circuit affirmed. See 05–CV–2198, 2005 WL 6795061 (D NJ, Oct. 31, 2005), aff’d, 227 Fed. Appx. 135 (2007). While the arbitration proceeded, this Court held in Stolt-Nielsen that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” 559 U. S., at 684. The parties in Stolt-Nielsen had stipulated that they had never reached an agreement on class arbitration. Relying on §10(a)(4), we vacated the arbitrators’ decision approving class proceedings because, in the absence of such an agreement, the arbitrators had “simply . . . imposed [their] own view of sound policy.” Id., at 672. Oxford immediately asked the arbitrator to reconsider his decision on class arbitration in light of Stolt-Nielsen. The arbitrator issued a new opinion holding that Stolt-Nielsen had no effect on the case because this agreement authorized class arbitration. Unlike in Stolt-Nielsen, the arbitrator explained, the parties here disputed the meaning of their contract; he had therefore been required “to construe the arbitration clause in the ordinary way to glean the parties’ intent.” App. 72. And in performing that task, the arbitrator continued, he had “found that the arbitration clause unambiguously evinced an intention to allow class arbitration.” Id., at 70. The arbitrator con-cluded by reconfirming his reasons for so construing the clause. Oxford then returned to federal court, renewing its effort to vacate the arbitrator’s decision under §10(a)(4). Once again, the District Court denied the motion, and the Third Circuit affirmed. The Court of Appeals first underscored the limited scope of judicial review that §10(a)(4) allows: So long as an arbitrator “makes a good faith attempt” to interpret a contract, “even serious errors of law or fact will not subject his award to vacatur.” 675 F.3d 215, 220 (2012). Oxford could not prevail under that standard, the court held, because the arbitrator had “endeavored to give effect to the parties’ intent” and “articulate[d] a contractual basis for his decision.” Id., at 223–224. Oxford’s objections to the ruling were “simply dressed-up arguments that the arbitrator interpreted its agreement erroneously.” Id., at 224. We granted certiorari, 568 U. S. ___ (2012), to address a circuit split on whether §10(a)(4) allows a court to vacate an arbitral award in similar circumstances.[1] Holding that it does not, we affirm the Court of Appeals. II Under the FAA, courts may vacate an arbitrator’s decision “only in very unusual circumstances.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995). That limited judicial review, we have explained, “maintain[s] arbitration’s essential virtue of resolving disputes straightaway.” Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U.S. 576, 588 (2008). If parties could take “full-bore legal and evidentiary appeals,” arbitration would become “merely a prelude to a more cumbersome and time-consuming judicial review process.” Ibid. Here, Oxford invokes §10(a)(4) of the Act, which authorizes a federal court to set aside an arbitral award “where the arbitrator[] exceeded [his] powers.” A party seeking relief under that provision bears a heavy burden. “It is not enough . . . to show that the [arbitrator] committed an error—or even a serious error.” Stolt-Nielsen, 559 U. S., at 671. Because the parties “bargained for the arbitra-tor’s construction of their agreement,” an arbitral decision “even arguably construing or applying the contract” must stand, regardless of a court’s view of its (de)merits. Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62 (2000) (quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599 (1960); Paperworkers v. Misco, Inc., 484 U.S. 29, 38 (1987); internal quotation marks omitted). Only if “the arbitrator act[s] outside the scope of his contractually delegated authority”—issuing an award that “simply reflect[s] [his] own notions of [economic] justice” rather than “draw[ing] its essence from the con-tract”—may a court overturn his determination. Eastern Associated Coal, 531 U. S., at 62 (quoting Misco, 484 U. S., at 38). So the sole question for us is whether the arbitrator (even arguably) interpreted the parties’ contract, not whether he got its meaning right or wrong.[2] And we have already all but answered that question just by summarizing the arbitrator’s decisions, see supra, at 2–3; they are, through and through, interpretations of the parties’ agreement. The arbitrator’s first ruling recited the “question of construction” the parties had submitted to him: “whether [their] Agreement allows for class action arbitration.” App. 29–30. To resolve that matter, the arbitrator focused on the arbitration clause’s text, analyzing (whether correctly or not makes no difference) the scope of both what it barred from court and what it sent to arbitration. The arbitrator concluded, based on that textual exegesis, that the clause “on its face . . . expresses the parties’ intent that class action arbitration can be maintained.” Id., at 32. When Oxford requested reconsideration in light of Stolt-Nielsen, the arbitrator explained that his prior decision was “concerned solely with the par-ties’ intent as evidenced by the words of the arbitration clause itself.” App. 69. He then ran through his textual analysis again, and reiterated his conclusion: “[T]he text of the clause itself authorizes” class arbitration. Id., at 73. Twice, then, the arbitrator did what the parties had asked: He considered their contract and decided whether it reflected an agreement to permit class proceedings. That suffices to show that the arbitrator did not “exceed[ ] [his] powers.” §10(a)(4). Oxford’s contrary view relies principally on Stolt-Nielsen. As noted earlier, we found there that an arbitration panel exceeded its powers under §10(a)(4) when it ordered a party to submit to class arbitration. See supra, at 3. Oxford takes that decision to mean that “even the ‘high hurdle’ of Section 10(a)(4) review is overcome when an arbitrator imposes class arbitration without a sufficient contractual basis.” Reply Brief 5 (quoting Stolt-Nielsen, 559 U. S., at 671). Under Stolt-Nielson, Oxford asserts, a court may thus vacate “as ultra vires” an arbitral decision like this one for misconstruing a contract to approve class proceedings. Reply Brief 7. But Oxford misreads Stolt-Nielsen: We overturned the arbitral decision there because it lacked any contractual basis for ordering class procedures, not because it lacked, in Oxford’s terminology, a “sufficient” one. The parties in Stolt-Nielsen had entered into an unusual stipulation that they had never reached an agreement on class arbitration. See 559 U. S., at 668–669, 673. In that circumstance, we noted, the panel’s decision was not—indeed, could not have been—“based on a determination regarding the parties’ intent.” Id., at 673, n. 4; see id., at 676 (“Th[e] stipulation left no room for an inquiry regarding the parties’ intent”). Nor, we continued, did the panel attempt to ascertain whether federal or state law established a “default rule” to take effect absent an agreement. Id., at 673. Instead, “the panel simply imposed its own conception of sound policy” when it ordered class proceedings. Id., at 675. But “the task of an arbitrator,” we stated, “is to interpret and enforce a contract, not to make public policy.” Id., at 672. In “impos[ing] its own policy choice,” the panel “thus exceeded its powers.” Id., at 677. The contrast with this case is stark. In Stolt-Nielsen, the arbitrators did not construe the parties’ contract, and did not identify any agreement authorizing class proceedings. So in setting aside the arbitrators’ decision, we found not that they had misinterpreted the contract, but that they had abandoned their interpretive role. Here, the arbitrator did construe the contract (focusing, per usual, on its language), and did find an agreement to permit class arbitration. So to overturn his decision, we would have to rely on a finding that he misapprehended the par-ties’ intent. But §10(a)(4) bars that course: It permits courts to vacate an arbitral decision only when the arbitrator strayed from his delegated task of interpreting a contract, not when he performed that task poorly. Stolt-Nielsen and this case thus fall on opposite sides of the line that §10(a)(4) draws to delimit judicial review of arbitral decisions. The remainder of Oxford’s argument addresses merely the merits: The arbitrator, Oxford contends at length, badly misunderstood the contract’s arbitration clause. See Brief for Petitioner 21–28. The key text, again, goes as follows: “No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration.” App. 15–16. The arbitrator thought that clause sent to arbitration all “civil action[s]” barred from court, and viewed class actions as falling within that category. See supra, at 2. But Oxford points out that the provision submits to arbitration not any “civil action[s],” but instead any “dispute arising under” the agreement. And in any event, Oxford claims, a class action is not a form of “civil action,” as the arbitrator thought, but merely a procedural device that may be available in a court. At bottom, Oxford maintains, this is a garden-variety arbi-tration clause, lacking any of the terms or features that would indicate an agreement to use class procedures. We reject this argument because, and only because, it is not properly addressed to a court. Nothing we say in this opinion should be taken to reflect any agreement with the arbitrator’s contract interpretation, or any quarrel with Oxford’s contrary reading. All we say is that convincing a court of an arbitrator’s error—even his grave error—is not enough. So long as the arbitrator was “arguably construing” the contract—which this one was—a court may not correct his mistakes under §10(a)(4). Eastern Associated Coal, 531 U. S., at 62 (internal quotation marks omitted). The potential for those mistakes is the price of agreeing to arbitration. As we have held before, we hold again: “It is the arbitrator’s construction [of the contract] which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” Enterprise Wheel, 363 U.S. at 599. The arbitrator’s construction holds, however good, bad, or ugly. In sum, Oxford chose arbitration, and it must now live with that choice. Oxford agreed with Sutter that an arbitrator should determine what their contract meant, including whether its terms approved class arbitration. The arbitrator did what the parties requested: He provided an interpretation of the contract resolving that disputed issue. His interpretation went against Oxford, maybe mistakenly so. But still, Oxford does not get to rerun the matter in a court. Under §10(a)(4), the question for a judge is not whether the arbitrator construed the parties’ contract correctly, but whether he construed it at all. Because he did, and therefore did not “exceed his powers,” we cannot give Oxford the relief it wants. We accordingly affirm the judgment of the Court of Appeals. It is so ordered. Notes 1 Compare 675 F.3d 215 (CA3 2012) (case below) (vacatur not proper), and Jock v. Sterling Jewelers Inc., 646 F.3d 113 (CA2 2011) (same), with Reed v. Florida Metropolitan Univ., Inc., 681 F.3d 630 (CA5 2012) (vacatur proper). 2 We would face a different issue if Oxford had argued below that the availability of class arbitration is a so-called “question of arbitrability.” Those questions—which “include certain gateway matters, such as whether parties have a valid arbitration agreement at all or whethera concededly binding arbitration clause applies to a certain type of controversy”—are presumptively for courts to decide. Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 452 (2003) (plurality opinion). A court may therefore review an arbitrator’s determination of such a matter de novo absent “clear[] and unmistakabl[e]” evidence that the parties wanted an arbitrator to resolve the dispute. AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986). Stolt-Nielsen made clear that this Court has not yet decided whether the availability of class arbitration is a question of arbitrability. See 559 U. S., at 680. But this case gives us no opportunity to do so because Oxford agreed that the arbitrator should determine whether its contract with Sutter authorized class procedures. See Brief for Petitioner 38, n. 9 (conceding this point). Indeed, Oxford submitted that issue to the arbitrator not once, but twice—and the second time after Stolt-Nielsen flagged that it might be a question of arbitrability.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus OXFORD HEALTH PLANS LLC v. SUTTER certiorari to the united states court of appeals for the third circuit No. 12–135. Argued March 25, 2013—Decided June 10, 2013 Respondent Sutter, a pediatrician, provided medical services to petitioner Oxford Health Plans’ insureds under a fee-for-services contract that required binding arbitration of contractual disputes. He nonetheless filed a proposed class action in New Jersey Superior Court, alleging that Oxford failed to fully and promptly pay him and other physicians with similar Oxford contracts. On Oxford’s motion, the court compelled arbitration. The parties agreed that the arbitrator should decide whether their contract authorized class arbitration, and he concluded that it did. Oxford filed a motion in federal court to vacate the arbitrator’s decision, claiming that he had “exceeded [his] powers” under §10(a)(4) of the Federal Arbitration Act (FAA), 9 U. S. C. §1 et. seq. The District Court denied the motion, and the Third Circuit affirmed. After this Court decided Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662—holding that an arbitrator may employ class procedures only if the parties have authorized them—the arbitrator reaffirmed his conclusion that the contract approves class arbitration. Oxford renewed its motion to vacate that decision under §10(a)(4). The District Court denied the motion, and the Third Circuit affirmed. Held: The arbitrator’s decision survives the limited judicial review allowed by §10(a)(4). Pp. 4−9. (a) A party seeking relief under §10(a)(4) bears a heavy burden. “It is not enough . . . to show that the [arbitrator] committed an error—or even a serious error.” Stolt-Nielsen, 559 U. S., at 671. Because the parties “bargained for the arbitrator’s construction of their agreement,” an arbitral decision “even arguably construing or applying the contract” must stand, regardless of a court’s view of its (de)merits. Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62. Thus, the sole question on judicial review is whether the arbitrator interpreted the parties’ contract, not whether he construed it correctly. Here, the arbitrator twice did what the parties asked: He considered their contract and decided whether it reflected an agreement to permit class proceedings. That suffices to show that he did not exceed his powers under §10(a)(4). Pp. 4−6. (b) Stolt-Neilsen does not support Oxford’s contrary view. There, the parties stipulated that they had not reached an agreement on class arbitration, so the arbitrators did not construe the contract, and did not identify any agreement authorizing class proceedings. This Court thus found not that they had misinterpreted the contract but that they had abandoned their interpretive role. Here, in stark contrast, the arbitrator did construe the contract, and did find an agreement to permit class arbitration. So to overturn his decision, this Court would have to find that he misapprehended the parties’ intent. But §10(a)(4) bars that course: It permits courts to vacate an arbitral decision only when the arbitrator strayed from his delegated task of interpreting a contract, not when he performed that task poorly. Oxford’s remaining arguments go to the merits of the arbitrator’s contract interpretation and are thus irrelevant under §10(a)(4). Pp. 6−9. 675 F.3d 215, affirmed. Kagan, J., delivered the opinion for a unanimous Court. Alito, J., filed a concurring opinion, in which Thomas, J., joined.

Respondent, a pediatrician, entered into a contract with petitioner health insurer to provide medical care to members of its network and to pay for those services at prescribed rates. Several years later, respondent filed suit against petitioner in a New Jersey Superior Court on behalf of himself and a proposed class of other physicians under contract with the insurer, alleging that the insurer had failed to make full and prompt payment to the doctors, in violation of their agree-ments and various state laws. The state court referred the suit to arbitration, and the parties agreed that the arbitrator should decide whether their contract authorized class arbitration. Noting that the question turned on the text of the arbitration clause quoted above, he reasoned that the clause sent to arbitration the same universal class of disputes that it barred the parties from bringing as civil actions in court, and concluded that a class action was plainly one of the possible forms of civil action absent the agreement. Accordingly, he concluded that on its face, the clause expressed the parties' intent that class arbitration can be maintained. Petitioner then filed a motion in Federal District Court to vacate that decision on the ground that he had exceeded his powers under §10(a)(4) of the Federal Arbitration Act (FAA or Act), which authorizes a federal court to set aside an arbitral award where an arbitrator exceeds his powers. While the arbitration proceeded, this Court vacated the arbitrators' decision approving class proceedings because, in the absence of an agreement on class arbitration, they had merely imposed their own view of sound policy. Applying the rule of Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 684, which held that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so, the parties had stipulated that they had never reached an agreement, and that, therefore, in absence of such a agreement, the Arbitrators had simply imposed themselves on the court. The arbitrator then reconcluded his task of construing the contract so as to allow the parties to satisfy their intent. Upon reconfirming its decision, the District Court denied the motion and the Court of Appeals affirmed. Held: 1. The decision survives the limited judicial review that §10 (a)(2) allows. . (a) Under the FAA, courts may vacate an arbitrral decision only in very unusual circumstances. Here, the question for a judge is not whether the arbitration arbitrator construed the parties’ contract correctly, but whether he construed it at all. Because he did, and therefore did not exceed his powers, this Court cannot give petitioner the relief it wants. Pp. (b) This case gives the Court no opportunity to decide whether the availability of class arbitration is a question of arbitrability, since the sole question is whether the arbitration (even arguably) interpreted the parties contract, not whether he got its meaning right or wrong. Stolt Nielsen and this case fall on opposite sides of the line that the line §10 4) draws to delimit judicial review of arbitral decisions. The remainder of Oxford's argument addresses merely the merits, but addresses the merits as well. In setting aside the arbitration panel decision, it was found not to have misinterpreted the contract, but to have abandoned their interpretive role. Only if it had found an agreement to permit class arbitration would a court overturn his determination. Moreover, the dispute is not barred by the arbitration provision of the Act, which bars a court from vacating an arbitration decision only when the arbitrator has strayed from his delegated task of interpreting a contract, rather than when he performed that task poorly. Cf. Stolt, supra, at 2.. 2. Nor does this case face a different issue if Oxford had argued below that the issue whether its contract with Sutter authorized class procedures is presumptively for courts to decide. A court may therefore review a arbitrator's determination of the matter de novo absent clear[] and unmistakabl[e] evidence that the parties wanted an arbitrators to resolve the dispute. But this case gives rise to the issue if, as in the instant case, Oxford agreed that, as the Arbitrator ordered, the court would have to rely on a finding that he misapprehended the par-ties' intent, but that it would instead use a device lacking a class-basis. And since it would face the same issue if the arbitration issue had been submitted to a second, less-than-prejudicial, review by the court, that question was not addressed by Oxford, but was addressed by Stolt n. 9 (conceding this point). Indeed, Oxford submitted that issue to the arbiter twice, and then after Stolt had flagged that it might be

2012_12-62

https://www.oyez.org/cases/2012/12-62

, except as to Part III–C.[1]* The Constitution forbids the passage of ex post facto laws, a category that includes “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull, 3 Dall. 386, 390 (1798) (emphasis deleted). The U. S. Sentencing Guidelines set forth an advisory sentencing range for each defendant convicted in federal court. We consider here whether there is an ex post facto violation when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense. We hold that there is. I Petitioner Marvin Peugh and his cousin, Steven Holle- well, ran two farming-related businesses in Illinois. Grainery, Inc., bought, stored, and sold grain; Agri-Tech, Inc., provided farming services to landowners and tenants. When the Grainery began experiencing cash-flow problems, Peugh and Hollewell engaged in two fraudulent schemes. First, they obtained a series of bank loans by representing falsely the existence of contracts for future grain deliveries from Agri-Tech to the Grainery. When they failed to pay back the principal on these loans, the bank suffered losses of over $2 million. Second, they ar- tificially inflated the balances of accounts under their con- trol by “check kiting,” or writing bad checks between their accounts. This scheme allowed them to overdraw an account by $471,000. They engaged in their illicit conduct in 1999 and 2000. When their acts were uncovered, Peugh and Hollewell were charged with nine counts of bank fraud, in violation of 18 U. S. C. §1344. While Hollewell pleaded guilty to one count of check kiting, Peugh pleaded not guilty and went to trial, where he testified that he had not intended to defraud the banks. The jury found him guilty of five counts of bank fraud and acquitted him of the remaining counts. At sentencing, Peugh argued that the Ex Post Facto Clause required that he be sentenced under the 1998 version of the Federal Sentencing Guidelines in effect at the time of his offenses, rather than under the 2009 version in effect at the time of sentencing. The two versions yielded significantly different results for Peugh’s applicable Guidelines sentencing range. Under the 1998 Guidelines, Peugh’s base offense level was 6. United States Sentencing Commission, Guidelines Manual §2F1.1 (Nov. 1998) (USSG). Thirteen levels were added for a loss amount of over $2.5 million, ibid., and 2 levels for obstruction of justice because of Peugh’s perjury at trial, see USSG §3C1.1 (Nov. 1998). The total offense level under the 1998 Guidelines was therefore 19. As a first-time offender, Peugh was in Criminal History Category I, and so his sentencing range under the 1998 Guidelines was 30 to 37 months. USSG, ch. 5, pt. A (Nov. 1998). The 2009 Guidelines in effect when Peugh was sentenced in May 2010 assigned more severe consequences to his acts. First, the base offense level was raised from 6 to 7 for crimes, like Peugh’s, that have a statutory maximum term of imprisonment of 20 years or more. See USSG §2B1.1 (Nov. 2009); 18 U. S. C. §1344. Second, the enhancement for a loss exceeding $2.5 million was 18, a 5-level increase from the 1998 Guidelines. USSG 2B1.1 (Nov. 2009). After adding the 2-level enhancement for obstruction of justice, Peugh’s total offense level under the 2009 Guidelines was 27. With a Criminal History Cate- gory of I, Peugh’s sentencing range rose under the 2009 Guidelines to 70 to 87 months. USSG, ch. 5, pt. A (Nov. 2009). The low end of the 2009 Guidelines range was 33 months higher than the high end of the 1998 Guidelines range. At the sentencing hearing, the District Court rejected Peugh’s argument that applying the 2009 Guidelines vio- lated the Ex Post Facto Clause, noting that it was foreclosed by Seventh Circuit precedent. App. 30 (discussing United States v. Demaree, 459 F.3d 791 (2006)). The District Court declined to give Peugh a downward variance, concluding that “a sentence within the [G]uideline[s] range is the most appropriate sentence in this case,” App. 100. It sentenced Peugh to 70 months’ imprisonment, ibid., the bottom of the 2009 Guidelines range. The Seventh Circuit, in keeping with its decision in Demaree, rejected Peugh’s ex post facto claim and affirmed his conviction and sentence. 675 F.3d 736 (2012). We granted certiorari to resolve a conflict among the Courts of Appeals over whether the Ex Post Facto Clause may be violated when a defendant is sentenced under the version of the Sentencing Guidelines in effect at the time of sentencing rather than the version in effect at the time the crime was committed, and the newer Guidelines yield a higher applicable sentencing range.[2] 568 U. S. ___ (2012). We now reverse. II Prior to 1984, the broad discretion of sentencing courts and parole officers had led to significant sentencing disparities among similarly situated offenders. To address this problem, Congress created the United States Sentencing Commission. Mistretta v. United States, 488 U.S. 361, 362, 366–367 (1989). The Sentencing Reform Act of 1984, 98Stat. 1987, eliminated parole in the federal system and directed the Sentencing Commission to promulgate uniform guidelines that would be binding on federal courts at sentencing. Mistretta, 488 U. S., at 367. The Commission produced the now familiar Sentencing Guidelines: a system under which a set of inputs specific to a given case (the particular characteristics of the offense and offender) yielded a predetermined output (a range of months within which the defendant could be sentenced). In United States v. Booker, 543 U.S. 220, 244 (2005), however, this Court held that mandatory Guidelines ran afoul of the Sixth Amendment by allowing judges to find facts that increased the penalty for a crime beyond “the maximum authorized by the facts established by a plea of guilty or a jury verdict.” See also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The appropriate remedy for this violation, the Court determined, was to strike those portions of the Sentencing Reform Act that rendered the Guidelines mandatory. Booker, 543 U. S., at 245–258. Under the resulting scheme, a district court is still required to consult the Guidelines. See id., at 259–260, 264; 18 U. S. C. §3553(a)(4)(A). But the Guidelines are no longer binding, and the district court must consider all of the factors set forth in §3553(a) to guide its discretion at sentencing, see Booker, 543 U. S., at 259–260, 264. The Booker remedy, “while not the system Congress enacted,” was designed to “continue to move sentencing in Congress’ preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.” Id., at 264–265. Our subsequent decisions have clarified the role that the Guidelines play in sentencing procedures, both at the district court level and when sentences are reviewed on appeal. First, “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark.” Gall v. United States, 552 U.S. 38, 49 (2007) (citation omitted). The district court must then consider the arguments of the par- ties and the factors set forth in §3553(a). Id., at 49–50. The district court “may not presume that the Guidelines range is reasonable,” id., at 50; and it “may in appropriate cases impose a non-Guidelines sentence based on dis- agreement with the [Sentencing] Commission’s views,” Pep- per v. United States, 562 U. S. ___, ___ (2011) (slip op., at 23) (citing Kimbrough v. United States, 552 U.S. 85, 109–110 (2007)). The district court must explain the basis for its chosen sentence on the record. Gall, 552 U. S., at 50. “[A] major departure [from the Guidelines] should be supported by a more significant justification than a minor one.” Ibid. On appeal, the district court’s sentence is reviewed for reasonableness under an abuse-of-discretion standard. See id., at 51; Booker, 543 U. S., at 261–264. Failure to calculate the correct Guidelines range constitutes procedural error, as does treating the Guidelines as mandatory. Gall, 552 U. S., at 51. The court of appeals may, but is not required to, presume that a within-Guidelines sentence is reasonable. Rita v. United States, 551 U.S. 338, 347 (2007). The reviewing court may not apply a heightened standard of review or a presumption of unreasonableness to sentences outside the Guidelines range, although it “will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall, 552 U. S., at 49–51. We have in- dicated that “a district court’s decision to vary from the advisory Guidelines may attract greatest respect when” it is based on the particular facts of a case. Kimbrough, 552 U. S., at 109.[3] Overall, this system “requires a court to give respectful consideration to the Guidelines,” but it “permits the court to tailor the sentence in light of other statutory concerns as well.” Id., at 101 (internal quotation marks omitted). Under 18 U. S. C. §3553(a)(4)(A)(ii), district courts are instructed to apply the Sentencing Guidelines issued by the United States Sentencing Commission that are “in effect on the date the defendant is sentenced.” The Sentencing Guidelines reiterate that statutory directive, with the proviso that “[i]f the Court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the [E]x [P]ost [F]acto [C]lause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.” USSG §§1B1.11(a), (b)(1) (Nov. 2012). Whether the Ex Post Facto Clause was violated by the use of the more onerous Guidelines in effect on the date of Peugh’s sentencing is the question pre- sented here. III A The Constitution prohibits both federal and state governments from enacting any “ex post facto Law.” Art. I, §9, cl. 3; Art. I, §10. The phrase “ ‘ex post facto law’ was a term of art with an established meaning at the time of the framing.” Collins v. Youngblood, 497 U.S. 37, 41 (1990). In Calder v. Bull, Justice Chase reviewed the definition that the term had acquired in English common law: “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” 3 Dall., at 390 (emphasis deleted). See also Carmell v. Texas, 529 U.S. 513, 521–525 (2000) (discussing Calder v. Bull and the common-law understanding of the term). Building on Justice Chase’s formulation of what constitutes an “ex post facto Law,” our cases “have not attempted to precisely delimit the scope of this Latin phrase, but have instead given it substance by an accretion of case law.” Dobbert v. Florida, 432 U.S. 282, 292 (1977). At issue here is Calder’s third category of ex post facto laws, those that “chang[e] the punishment, and inflic[t] a greater punishment, than the law annexed to the crime, when committed.” 3 Dall., at 390. Peugh’s claim is that the Clause was violated because the 2009 Guidelines call for a greater punishment than attached to bank fraud in 2000, when his crimes were completed. The Government counters that because the more punitive Guidelines applied at Peugh’s sentencing were only advisory, there was no ex post facto problem. Each of the parties can point to prior decisions of this Court that lend support to its view. On the one hand, we have never accepted the proposition that a law must increase the maximum sentence for which a defendant is eligible in order to violate the Ex Post Facto Clause. See, e.g., Lindsey v. Washington, 301 U.S. 397 (1937). More- over, the fact that the sentencing authority exercises some measure of discretion will also not defeat an ex post facto claim. See Garner v. Jones, 529 U.S. 244, 253 (2000). On the other hand, we have made it clear that mere speculation or conjecture that a change in law will retrospectively increase the punishment for a crime will not suffice to establish a violation of the Ex Post Facto Clause. See California Dept. of Corrections v. Morales, 514 U.S. 499, 509 (1995). The touchstone of this Court’s inquiry is whether a given change in law presents a “ ‘sufficient risk of increasing the measure of punishment attached to the covered crimes.’ ” Garner, 529 U. S., at 250 (quoting Morales, 514 U. S., at 509). The question when a change in law creates such a risk is “a matter of degree”; the test cannot be reduced to a “single formula.” Id., at 509 (internal quotation marks omitted).[4] B The most relevant of our prior decisions for assessing whether the requisite degree of risk is present here is Miller v. Florida, 482 U.S. 423 (1987), in which this Court considered an ex post facto challenge to a sentencing guidelines scheme implemented by the State of Florida. Under Florida’s system, a calculation under the guidelines yielded a presumptive sentencing range. Id., at 426. This range was assumed to be appropriate, and the sentencing judge had discretion to fix a sentence within that range “ ‘without the requirement of a written explanation.’ ” Ibid. (quoting Fla. Rule Crim. Proc. 3.701(d)(8) (1983)). If the court wished to depart from the guidelines range, however, it was required to give “clear and convincing reasons in writing for doing so.” 482 U. S., at 426. A within-guidelines sentence was unreviewable; a non-guidelines sentence was subject to appellate review. Ibid. The petitioner in Miller had been sentenced under new guidelines that yielded a higher sentencing range than the guidelines that had been in place at the time of his crime, and he had received a sentence at the top of the new range. Ibid. This Court found an ex post facto violation. We emphasized that in order to impose the petitioner’s sentence under the pre-existing guidelines, the sentenc- ing judge would have been required to provide clear and convincing reasons in writing for the departure, and the sentence would then have been reviewable on appeal. Id., at 432. In contrast, because the sentence imposed was within the new guidelines range, it required no explanation and was unreviewable. Id., at 432–433. The fact that Florida’s guidelines “create[d] a high hurdle that must be cleared before discretion can be exercised” was sufficient to render the changed guidelines an ex post facto law. Id., at 435. Miller thus establishes that applying amended sentencing guidelines that increase a defendant’s recommended sentence can violate the Ex Post Facto Clause, notwithstanding the fact that sentencing courts possess discretion to deviate from the recommended sentencing range. The sentencing scheme in Miller was designed to channel sen- tences for similarly situated offenders into a specified range. Its reason-giving requirements and standards of appellate review meant that while variation was possible, it was burdensome; and so in the ordinary case, a defendant would receive a within-guidelines sentence. Under the Florida system, therefore, an increase in the guidelines range applicable to an offender created a significant risk that he would receive a higher sentence.[5] The same principles apply here. The post-Booker federal sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions are anchored by the Guidelines and that they remain a meaningful benchmark through the process of appellate review. See Kimbrough, 552 U. S., at 107. As we have described, “district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.” Gall, 552 U. S., at 50, n. 6 (emphasis added). Failing to calculate the correct Guidelines range constitutes procedural error. Id., at 51. A district court contemplating a non-Guidelines sentence “must con- sider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id., at 50. See also Pepper, 562 U. S., at ___ (Breyer, J., concurring in part and concurring in judgment) (slip op., at 1) (“[T]he law permits the court to disregard the Guidelines only where it is ‘reasonable’ for a court to do so” (citing Booker, 543 U. S., at 261–262)). These requirements mean that “[i]n the usual sentencing, . . . the judge will use the Guidelines range as the starting point in the analysis and impose a sentence within the range.” Freeman v. United States, 564 U. S. ___, ___ (2011) (plurality opinion) (slip op., at 5). Even if the sentencing judge sees a reason to vary from the Guidelines, “if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence.” Ibid. (emphasis added). See also id., at ___ (Sotomayor, J., concurring in judgment) (slip op., at 2) (stating that outside the context of a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, “in the normal course the district judge’s calculation of the Guidelines range applicable to the charged offenses will serve as the basis for the term of imprisonment imposed”). That a district court may ultimately sentence a given defendant outside the Guidelines range does not deprive the Guidelines of force as the framework for sentencing. Indeed, the rule that an incorrect Guidelines calculation is procedural error en- sures that they remain the starting point for every sentencing calculation in the federal system. Similarly, appellate review for reasonableness using the Guidelines as a benchmark helps promote uniformity by “tend[ing] to iron out sentencing differences.” Booker, 543 U. S., at 263. Courts of appeals may presume a within-Guidelines sentence is reasonable, see Rita, 551 U. S., at 347, and they may further “consider the extent of the deviation” from the Guidelines as part of their reason- ableness review, Gall, 552 U. S., at 51. As in Miller, then, the post-Booker sentencing regime puts in place proce- dural “hurdle[s]” that, in practice, make the imposition of a non-Guidelines sentence less likely. See 482 U. S., at 435. This is a more difficult case than Miller, because there are relevant differences between Florida’s sentencing scheme and the current federal sentencing regime. The Florida Legislature had made a within-guidelines sentence unreviewable; whereas in the federal system, the courts of appeals may—but are not required to—presume that a within-Guidelines sentence is reasonable. And under Florida’s scheme, a sentencing court departing from the guideline range was required to provide “clear and convincing” reasons for the departure; whereas this Court has not, post-Booker, applied such an exacting across-the-board standard of review to variances. Rather, we have held that a district court varying from the Federal Guidelines should provide an explanation adequate to the extent of the departure. See Gall, 552 U. S., at 51. But contrary to the arguments advanced by the Government and Justice Thomas’ dissent (hereinafter dissent), see Brief for United States 23–24; post, at 5–6, these differences are not dispositive. Although the federal system’s procedural rules establish gentler checks on the sentencing court’s discretion than Florida’s did, they nevertheless impose a series of requirements on sentencing courts that cabin the exercise of that discretion. Common sense indicates that in general, this system will steer district courts to more within-Guidelines sentences. Peugh points to considerable empirical evidence indicating that the Sentencing Guidelines have the intended effect of influencing the sentences imposed by judges. Even after Booker rendered the Sentencing Guidelines advisory, district courts have in the vast majority of cases imposed either within-Guidelines sentences or sentences that depart downward from the Guidelines on the Government’s motion. See United States Sentencing Commission, 2011 Sourcebook of Federal Sentencing Statistics, p. 63 (Figure G) (16th ed.) (USSC). In less than one-fifth of cases since 2007 have district courts imposed above- or below-Guidelines sentences absent a Government motion. See ibid. See also Baron-Evans & Stith, Booker Rules, 160 U. Pa. L. Rev. 1631, 1677 (2012). Moreover, the Sentencing Commission’s data indicate that when a Guidelines range moves up or down, offenders’ sentences move with it. See USSC, Final Quarterly Data Report, FY 2012, p. 32 (Figure C); USSC, Report on the Continuing Impact of United States v. Booker on Federal Sentencing, Pt. A, pp. 60–68 (2012).[6] The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing. A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation. C Our holding today is consistent with basic principles of fairness that animate the Ex Post Facto Clause. The Framers considered ex post facto laws to be “contrary to the first principles of the social compact and to every principle of sound legislation.” The Federalist No. 44, p. 282 (C. Rossiter ed. 1961) (J. Madison). The Clause ensures that individuals have fair warning of applicable laws and guards against vindictive legislative action. See Weaver v. Graham, 450 U.S. 24, 28–29 (1981); see also post, at 11–13. Even where these concerns are not directly implicated, however, the Clause also safeguards “a fundamental fairness interest . . . in having the government abide by the rules of law it establishes to govern the cir-cumstances under which it can deprive a person of his or her liberty or life.” Carmell, 529 U. S., at 533. The Sentencing Guidelines represent the Federal Government’s authoritative view of the appropriate sentences for specific crimes. When Peugh committed his crime, the recommended sentence was 30 to 37 months. When he was sentenced, it was 70 to 87 months. “[T]he purpose and effect of the change in [the Guidelines calculation] was to increase the rates and length of incarceration for [fraud].” Miller, 482 U. S., at 431 (citing Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So. 2d 824, 824, n. (1984) (per curiam) (internal quotation marks and alterations omitted)). Such a retrospective increase in the measure of punishment raises clear ex post facto concerns. We have previously recognized, for instance, that a defendant charged with an increased punishment for his crime is likely to feel enhanced pressure to plead guilty. See Carmell, 529 U. S., at 534, n. 24; Weaver, 450 U. S., at 32. This pressure does not disappear simply because the Guidelines range is advisory; the defendant will be aware that the range is intended to, and usually does, exert controlling influence on the sentence that the court will impose. We are therefore not persuaded by the argument advanced by the Government and also suggested by the dissent that the animating principles of the Ex Post Facto Clause are not implicated by this case. While the Government argues that the Sentencing Commission is insulated from legislative interference, see Brief for United States 42–44, our precedents make clear that the coverage of the Ex Post Facto Clause is not limited to legislative acts, see Garner, 529 U. S., at 247, 257 (recognizing that a change in a parole board’s rules could, given an adequate showing, run afoul of the Ex Post Facto Clause). It is true that we held, in Irizarry v. United States, 553 U.S. 708, 713–714 (2008), that a defendant does not have an “expectation subject to due process protection” that he will be sentenced within the Guidelines range. But, contrary to the dissent’s view, see post, at 11–13, the Ex Post Facto Clause does not merely protect reliance interests. It also reflects principles of “fundamental justice.” Carmell, 529 U. S., at 531.[7] IV The Government’s principal argument that there is no constitutional violation in this case is that the Sentencing Guidelines lack sufficient legal effect to attain the sta- tus of a “law” within the meaning of the Ex Post Facto Clause. Whereas the pre-Booker Guidelines “ha[d] the force and effect of laws,” Booker, 543 U. S., at 234, the post-Booker Guidelines, the Government contends, have lost that status due to their advisory nature. The dissent echoes this argument. Post, at 1–3, 6–8. The distinction that the Government draws is necessar- ily a fine one, because our precedents firmly establish that changes in law need not bind a sentencing authority in order to violate the Ex Post Facto Clause. So, for example, a law can run afoul of the Clause even if it does not alter the statutory maximum punishment attached to a crime. In Lindsey v. Washington, 301 U.S. 397, this Court considered an ex post facto challenge to a Washington law altering the statutory penalty for grand larceny from a range of 0 to 15 years’ imprisonment to a mandatory term of 15 years’ imprisonment. Although the upper boundary of the sentencing court’s power to punish remained unchanged, it was enough that the petitioners were “deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term.” Id., at 402 (emphasis added). In addition, our cases make clear that “[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause.” Garner, 529 U. S., at 253. In a series of cases, for example, this Court has considered the validity under the Ex Post Facto Clause of state laws altering the terms on which discretionary parole or early release was available to prisoners. See Garner, 529 U.S. 244; Morales, 514 U.S. 499; Weaver, 450 U.S. 24. Although these cases reached differing conclusions with respect to whether there was an ex post facto violation, in none of them did we indicate that the mere fact that the prisoner was not guaranteed parole but rather received it at the will of the parole board was fatal to his claim. See Garner, 529 U. S., at 253; Morales, 514 U. S., at 508–510, and n. 6; Weaver, 450 U. S., at 30–31. The Government does not challenge these holdings but rather argues, in essence, that the Guidelines are too much like guideposts and not enough like fences to give rise to an ex post facto violation. It contrasts the Sentenc- ing Guidelines with the Florida system at issue in Miller, which, the Government indicates, really did place “a substantial legislative constraint on the judge’s exercise of sentencing discretion.” Brief for United States 21. But as we have explained at length, the difference between the federal system and the scheme the Court considered in Miller is one in degree, not in kind. The Florida system did not achieve its “binding legal effect,” Brief for United States 22, by mandating a within-guidelines sentence in every case. Rather, it achieved its “binding legal effect” through a set of procedural rules and standards for appellate review that, in combination, encouraged district courts to sentence within the guidelines. See Miller, 482 U. S., at 432–433. We have detailed all of the ways in which the federal sentencing regime after Booker does the same.[8] The Government elaborates its argument that the Sentencing Guidelines do not have adequate legal force to constitute an ex post facto violation by reviewing the various features of the post-Booker sentencing regime that, in its view, tend to render the Guidelines purely advisory. As we have noted, district courts may not presume that a within-Guidelines sentence is reasonable; they may “in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views,” Pepper, 562 U. S., at ___ (slip op., at 23); and all sentences are reviewed under a deferential abuse-of-discretion standard. See supra, at 5–6. While the Government accurately describes several attributes of federal sentencing after Booker, the conclusion it draws by isolating these features of the system is ultimately not supportable. On the Government’s account, the Guidelines are just one among many persuasive sources a sentencing court can consult, no different from a “policy paper.” Brief for United States 28. The Government’s argument fails to acknowledge, however, that district courts are not required to consult any policy paper in order to avoid reversible procedural error; nor must they “consider the extent of [their] deviation” from a given policy paper and “ensure that the justification is suffi- ciently compelling to support the degree of the variance,” Gall, 552 U. S., at 50. Courts of appeals, in turn, are not permitted to presume that a sentence that comports with a particular policy paper is reasonable; nor do courts of appeals, in considering whether the district court’s sentence was reasonable, weigh the extent of any departure from a given policy paper in determining whether the district court abused its discretion, see id., at 51. It is simply not the case that the Sentencing Guidelines are merely a volume that the district court reads with academic interest in the course of sentencing. Of course, as the Government and the dissent point out, notwithstanding a rule that retrospective application of a higher Guidelines range violates the Ex Post Facto Clause, sentencing courts will be free to give careful consideration to the current version of the Guidelines as representing the most recent views of the agency charged by Congress with developing sentencing policy. See post, at 8 (citing Demaree, 459 F. 3d, at 795). But this does not render our holding “purely semantic.” Id., at 795. District courts must begin their sentencing analysis with the Guidelines in effect at the time of the offense and use them to calculate the sentencing range correctly; and those Guidelines will anchor both the district court’s discretion and the appellate review process in all of the ways we have described. The newer Guidelines, meanwhile, will have the status of one of many reasons a district court might give for deviating from the older Guidelines, a status that is simply not equivalent for ex post facto purposes. Finally, the Government contends that a rule that the Ex Post Facto Clause is violated by the application of an increased Guidelines range would be in tension with this Court’s post-Booker cases and, indeed, would “largely undo . . . the Booker remedy” for the Sixth Amendment violation found there. Brief for United States 35. If the Guidelines are binding enough to trigger an ex post facto violation, the argument goes, then they must be binding enough to trigger a Sixth Amendment violation as well. The Government’s argument assumes that the Sixth Amendment and the Ex Post Facto Clause share a common boundary; that only where judge-found facts are the basis of a higher sentence in a manner that raises Sixth Amendment concerns can a set of sentencing rules be sufficiently determinate to run afoul of the Ex Post Facto Clause. But the Sixth Amendment and Ex Post Facto Clause inquiries are analytically distinct. Our Sixth Amendment cases have focused on when a given finding of fact is required to make a defendant legally eligible for a more severe penalty. Our ex post facto cases, in contrast, have focused on whether a change in law creates a “significant risk” of a higher sentence; here, whether a sentence in conformity with the new Guidelines is substantially likely. The Booker remedy was designed, and has been subsequently calibrated, to exploit precisely this distinction: it is intended to promote sentencing uniformity while avoiding a Sixth Amendment violation. In light of the statistics invoked by petitioner, see supra, at 12–13, it appears so far to be achieving this balance. Nothing that we say today “undo[es]” the holdings of Booker, Rita, Gall, Kimbrough, or our other recent sentencing cases. * * * The arguments put forward by the Government and the dissent cannot unseat the conclusion that Peugh’s case falls within Calder’s third category of ex post facto violations. “[T]he Ex Post Facto Clause forbids the [government] to enhance the measure of punishment by altering the substantive ‘formula’ used to calculate the applicable sentencing range.” Morales, 514 U. S., at 505. That is precisely what the amended Guidelines did here. Doing so created a “significant risk” of a higher sentence for Peugh, Garner, 529 U. S., at 251, and offended “one of the principal interests that the Ex Post Facto Clause was designed to serve, fundamental justice,” Carmell, 529 U. S., at 531.[9] For these reasons, we reverse the judgment of the Seventh Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 *Justice Kennedy joins this opinion except as to Part III–C. 2 Compare United States v. Demaree, 459 F.3d 791, 795 (CA7 2006), with United States v. Wetherald, 636 F.3d 1315, 1321–1322 (CA11 2011); United States v. Ortiz, 621 F.3d 82, 87 (CA2 2010); United States v. Lewis, 606 F.3d 193, 199–203 (CA4 2010); United States v. Lanham, 617 F.3d 873, 889–890 (CA6 2010); United States v. Turner, 548 F.3d 1094, 1099–1100 (CADC 2008). 3 We have left open the question whether “closer [appellate] review [of a non-Guidelines sentence] may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range ‘fails properly to reflect §3553(a) considerations’ even in a mine-run case.” Kimbrough, 552 U. S., at 109 (quoting Rita, 551 U. S., at 351). Resolution of this case does not require us to assess the merits of this issue. 4 Justice Thomas, raising the issue on his own initiative, would reject our established Ex Post Facto Clause framework. Post, at 9–13. We decline to revisit settled precedent, and we reject Justice Thomas’ assertion that our case law has become “unworkab[le],” post, at 9, simply because it requires case-by-case judgments. 5 Miller employed a “substantial disadvantage” test that this Court has since abandoned. See California Dept. of Corrections v. Morales, 514 U.S. 499, 506–507, n. 3 (1995). The relevant question is whether the change in law creates a “ ‘sufficient’ ” or “significant” risk of increasing the punishment for a given crime. Garner v. Jones, 529 U.S. 244, 250, 251 (2000). As we have made clear, however, the result in Miller remains sound. See Morales, 514 U. S., at 506–507, n. 3. 6 The Government does not dispute these statistics. It argues instead that by relying on aggregated data, Peugh glosses over the fact that non-Guidelines sentences are more common for certain crimes and that some individual judges are less likely to follow the Guidelines than others. Brief for United States 49–50. But these arguments do not refute the basic point that the applicable Guidelines channel sentences toward the specified range, even if they do not fix them within it. 7 Of course, “while the principle of unfairness helps explain and shape the Clause’s scope, it is not a doctrine unto itself, invalidating laws under the Ex Post Facto Clause by its own force.” Carmell, 529 U. S., at 533, n. 23. 8 The Government likens the Sentencing Guidelines system to the Parole Commission’s Parole Release Guidelines, which established an advisory framework for parole decisions, see United States Parole Comm’n v. Geraghty, 445 U.S. 388, 391 (1980), and argues that Miller indicated that retrospectively applying more stringent parole guidelines would not have constituted an ex post facto violation. The issue ofthe constitutional validity of the retrospective application of the parole guidelines, however, was not before the Court in Miller. While the Miller Court did state that lower court cases discussing the federal parole guidelines were “inapposite” to its discussion of the Florida guidelines, 482 U. S., at 434–435, it had no occasion to address whether changes to the parole guidelines generated an ex post facto problem. 9 There may be cases in which the record makes clear that the District Court would have imposed the same sentence under the older, more lenient Guidelines that it imposed under the newer, more punitive ones. In such a case, the ex post facto error may be harmless. See Chapman v. California, 386 U.S. 18 (1967). Here, however, the Government does not argue that any ex post facto violation was harmless. And indeed, any such argument would fail in light of the fact that the District Court rejected Peugh’s ex post facto claim in keeping with Circuit precedent, applied the new Guidelines, and indicated at sentencing that “a sentence within the [G]uideline range is the most appropriate sentence in this case.” App. 30, 100.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus PEUGH v. UNITED STATES certiorari to the united states court of appeals for the seventh circuit No. 12–62. Argued February 26, 2013—Decided June 10, 2013 Petitioner Peugh was convicted of five counts of bank fraud for conduct that occurred in 1999 and 2000. At sentencing, he argued that the Ex Post Facto Clause required that he be sentenced under the 1998 version of the Federal Sentencing Guidelines in effect at the time of his offenses rather than under the 2009 version in effect at the time of sentencing. Under the 1998 Guidelines, Peugh’s sentencing range was 30 to 37 months, but the 2009 Guidelines assigned more severe consequences to his acts, yielding a range of 70 to 87 months. The District Court rejected Peugh’s ex post facto claim and sentenced him to 70 months’ imprisonment. The Seventh Circuit affirmed. Held: The judgment is reversed, and the case is remanded. 675 F.3d 736, reversed and remanded. Justice Sotomayor delivered the opinion of the Court, except as to Part III–C, concluding that the Ex Post Facto Clause is violated when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher sentencing range than the version in place at the time of the offense. , 15–20. (a) Though no longer mandatory, see United States v. Booker, 543 U.S. 220, the Guidelines still play an important role in sentencing procedures. A district court must begin “by correctly calculating the applicable Guidelines range,” Gall v. United States, 552 U.S. 38, 49, and then consider the parties’ arguments and factors specified in 18 U. S. C. §3553(a). 552 U. S., at 49–50. The court “may not presume that the Guidelines range is reasonable,” id., at 50, and must explain the basis for its sentence on the record, ibid. On appeal, a sentence is reviewed for reasonableness under an abuse-of-discretion standard. Id., at 51. A district court is to apply the Guidelines “in effect on the date the defendant is sentenced,” §3553(a)(4)(A)(ii), but, per the Guidelines, is to use the Guidelines in effect on the date the offense was committed should the Guidelines in effect on the sentencing date be found to violate the Ex Post Facto Clause. . (b) The Constitution forbids the passage of ex post facto laws, a category including, as relevant here, “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull, 3 Dall. 386, 390. The “scope of this Latin phrase” is given “substance by an accretion of case law.” Dobbert v. Florida, 432 U.S. 282, 292. The touchstone of the inquiry is whether a given change in law presents a “ ‘sufficient risk of increasing the measure of punishment attached to the covered crimes.’ ” Garner v. Jones, 529 U.S. 244, 250. . (c) The most relevant prior decision is Miller v. Florida, 482 U.S. 423. There, the Court found an ex post facto violation when the petitioner was sentenced under Florida’s new sentencing guidelines, which yielded a higher sentencing range than the guidelines in place at the time of his crime. The pre-existing guidelines would have required the sentencing judge to provide clear and convincing reasons in writing for any departure, and the sentence would have been reviewable on appeal. But under the new guidelines, a sentence within the guidelines range required no explanation and was unreviewable. Variation in the sentence, though possible, was burdensome; so in the ordinary case, a defendant would receive a within-guidelines sentence. Thus, increasing the applicable guidelines range created a significant risk of a higher sentence. The same principles apply to the post-Booker federal sentencing scheme, which aims to achieve uniformity by ensuring that sentencing decisions are anchored by the Guidelines. Normally, a “judge will use the Guidelines range as the starting point in the analysis and impose a sentence within the range.” Freeman v. United States, 564 U. S. ___, ___. That the court may impose a sentence outside that range does not deprive the Guidelines of force as the framework for sentencing. Uniformity is also promoted by appellate review for reasonableness with the Guidelines as a benchmark. Appellate courts may presume a within-Guidelines sentence is reasonable, see Rita v. United States, 551 U.S. 338, 347, and may “consider the extent of the deviation” from the Guidelines as part of their reasonableness review, Gall, 552 U. S., at 51. The sentencing regime also puts in place procedural hurdles that, in practice, make imposition of a non-Guidelines sentence less likely. Florida’s scheme and the federal regime differ, but those differences are not dispositive. Common sense indicates that the federal system generally will steer district courts to more within-Guidelines sentences, and considerable empirical evidence suggests that the Guidelines have that effect. A retrospective increase in an applicable Guidelines range thus creates a sufficient risk of a higher sentence to constitute an ex post facto violation. . (d) The Government’s contrary arguments are unpersuasive. Its principal claim is that the Sentencing Guidelines lack sufficient legal effect to attain the status of a “law” within the meaning of the Ex Post Facto Clause. Changes in law need not bind a sentencing authority for there to be an ex post facto violation, and “[t]he presence of discretion does not displace the protections of [that] Clause.” Garner, 529 U. S., at 253. As for contrasts between the Federal Guidelines and the Florida system in Miller, the difference between the two systems is one in degree, not in kind. The attributes of post-Booker sentencing fail to show that the Guidelines are but one among many persuasive sources a sentencing court may consult in making a decision. Recognizing an ex post facto violation here is consistent with post-Booker Sixth Amendment cases. The Court’s Sixth Amendment cases, which focus on when a given finding of fact is required to make a defendant legally eligible for a more severe penalty, are distinct from its ex post facto cases, which focus on whether a change in law creates a “significant risk” of a higher sentence. The Booker remedy was designed, and has been subsequently calibrated, to exploit precisely this distinction: promoting sentencing uniformity while avoiding a Sixth Amendment violation. Nothing in this case undoes the holdings of such cases as Booker, Rita, and Gall. . Sotomayor, J., delivered the opinion of the Court, except as to Part III–C. Ginsburg, Breyer, and Kagan, JJ., joined that opinion in full, and Kennedy, J., joined except as to Part III–C. Thomas, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Alito, JJ., joined as to Parts I and II–C. Alito, J., filed a dissenting opinion, in which Scalia, J., joined.

Petitioner Peugh and his cousin engaged in two fraudulent schemes. First, they obtained bank loans by representing falsely the existence of contracts for future grain deliveries. Second, they inflated the balances of accounts under their con- trol by writing bad checks between their accounts. This allowed them to overdraw an account by $471,000. When their acts were uncovered, they were charged with nine counts of bank fraud, in violation of 18 U.S. C. §1344. The total offense level under the 1998 Guidelines was 19. As a first-time offender, Peugh was in Criminal History Category I, and his sentencing range under the 2009 Guidelines was 30 to 37 months. At sentencing, the District Court rejected petitioner Peugh's contention that the Ex Post Facto Clause required that he be sentenced under the current version of the Guidelines in effect at the time of his offenses, rather than under the now-presumptively promulgated version in effect when he committed his criminal acts. The Court of Appeals affirmed. Held: 1. There is an ex post facto violation when a defendant is sentenced under either the version of a Sentencing Guidelines promulgated after he committed the criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place when the offense was committed. . (a) The Constitution prohibits both federal and state governments from enacting any "ex post facto Law." Calder v. Bull, 488 U. S. 361, 362, 366. The phrase is a term of art with an established meaning at the time of the framing, and the phrase has acquired in English common law an accretion of case law. However, applying amended sentencing guidelines that increase a defendant's recommended sentence can violate the Clause, notwithstanding the fact that sentencing courts possess discretion to deviate from the recommended sentencing range. Miller v. Florida, 482 U. S. 423, distinguished. This Court has never accepted the proposition that a law must increase the maximum sentence for which a defendant must be eligible for a maximum sentence in order to violate the Rule of Criminal Procedure 11(c)(1)(C) of the United States Constitution. Moreover, a retrospective increase in the Guidelines range creates a risk that a defendant will receive a higher sentence. United States v. Booker,, distinguished.. 2. This case does not fall within Calder, supra, because the sentencing guidelines range is advisory. The argument that the Guidelines lack sufficient legal effect to attain the sta- tus of a "law" within the meaning of the Clause is not supported by prior decisions of this Court that lend support to the view that a new law need not bind a sentencing authority to violate that Clause. The Clause does not merely protect reliance interests, but also reflects principles of fundamental justice. Pp. 476 U. s. 427-427. 675 F.3d 736, reversed and remanded. Justice Kennedy joins this opinion except as to Part III-C. (emphasis deleted). Justice Thomas, raising the issue on his own initiative, would reject this Court's established Ex Post- Facto Clause framework, post, at 9. See, e.g., ibid., at 10. Although the federal system's procedural rules establish gentler checks on the sentencing court's discretion than Florida's did, they nevertheless impose a series of requirements on sentencing courts that cabin the exercise of that discretion. Common sense indicates that in general, this system will steer district courts to more within-Guidelines sentences. See, for example, Lindsey v. Washington, 606 F. 3d 873, 889, n. 3. The relevant question is whether the change in law creates a significant risk that the district court abused its discretion even in a mine-run case. Resolution of the case will not require this Court to assess the merits of this issue. Cf. Miller, supra. There are relevant differences between Florida's sentencing scheme and the current federal sentencing regime, and, contrary to the Government and the dissent, the post-Booker sentencing regime puts in place proce- dural safeguards that, in practice, make the imposition of a non-GuGuidelines sentence less likely. Here, however, the Government does not argue that any ex- facto violation was harmless, since the sentencing judge would have been required to provide clear and convincing reasons in writing for the departure of the offending sentence, and would have then had discretion to impose a sentence within the new guidelines range. See id., at 1.3, 6–8... Justice Thomas will also reject the set of Ex PostFacto Clause principles that this Court has since abandoned. See California Dept. of Corrections v. Morales, 514 U. 513, 506-507. That a district court varying from the Guidelines should provide an explanation adequate to the extent of the departure is ultimately not supportable. On the basis of

2012_12-43

https://www.oyez.org/cases/2012/12-43

. In 1997, the United Kingdom (U. K.) imposed a one-time “windfall tax” on 32 U. K. companies privatized between 1984 and 1996. This case addresses whether that tax is creditable for U. S. tax purposes. Internal Revenue Code §901(b)(1) states that any “income, war profits, and excess profits taxes” paid overseas are creditable against U. S. income taxes. 26 U. S. C. §901(b)(1). Treasury Regulations interpret this section to mean that a foreign tax is creditable if its “predominant character” “is that of an income tax in the U. S. sense.” Treas. Reg. §1.901–2(a)(1)(ii), 26 CFR §1.901–2(a)(1) (1992). Consistent with precedent and the Tax Court’s analysis below, we apply the predominant character test using a commonsense approach that considers the substantive effect of the tax. Under this approach, we hold that the U. K. tax is credit-able under §901 and reverse the judgment of the Court of Appeals for the Third Circuit. I A During the 1980’s and 1990’s, the U. K.’s Conservative Party controlled Parliament and privatized a number of government-owned companies. These companies were sold to private parties through an initial sale of shares, known as a “flotation.” As part of privatization, many com-panies were required to continue providing services at the same rates they had offered under government control for a fixed period, typically their first four years of private operation. As a result, the companies could only increase profits during this period by operating more efficiently. Responding to market incentives, many of the companies became dramatically more efficient and earned substantial profits in the process. The U. K.’s Labour Party, which had unsuccessfully opposed privatization, used the companies’ profitability as a campaign issue against the Conservative Party. In part because of campaign promises to tax what it characterized as undue profits, the Labour Party defeated the Conservative Party at the polls in 1997. Prior to coming to power, Labour Party leaders hired accounting firm Arthur Andersen to structure a tax that would capture excess, or “windfall,” profits earned during the initial years in which the companies were prohibited from increasing rates. Par-liament eventually adopted the tax, which applied only to the regulated companies that were prohibited from raising their rates. See Finance (No. 2) Act, 1997, ch. 58, pt. I, cls. 1 and 2(5) (Eng.) (U. K. Windfall Tax Act). It imposed a 23 percent tax on any “windfall” earned by such companies. Id., cl. 1(2). A separate schedule “se[t] out how to quantify the windfall from which a company was benefitting.” Id., cl. 1(3). See id., sched. 1. In the proceedings below, the parties stipulated that the following formula summarizes the tax imposed by the Labour Party: D equals the number of days a company was subject to rate regulation (also known as the “initial period”), P equals the total profits earned during the initial period, and FV equals the flotation value, or market capitalization value after sale. For 27 of the 32 companies subject to the tax, the number of days in the initial period was 1,461 days (or four years). Of the remaining five companies, one had no tax liability because it did not earn any windfall profits. Three had initial periods close to four years (1,463, 1,456, and 1,380 days). The last was privatized shortly before the Labour Party took power and had an initial period of only 316 days. The number 9 in the formula was characterized as a price-to-earnings ratio and was selected because it represented the lowest average price-to-earnings ratio of the 32 companies subject to the tax during the relevant period.[1] See id., sched. 1, §1, cl. 2(3); Brief for Respondent 7. The statute expressly set its value, and that value was the same for all companies. U. K. Windfall Tax Act, sched. 1, §1, cl. 2(3). The only variables that changed in the windfall tax formula for all the companies were profits (P) and flotation value (FV); the initial period (D) varied for only a few of the companies subject to the tax. The Labour government asserted that the term [365 × (P ∕ D) × 9] represented what the flotation value should have been given the assumed price-to-earnings ratio of 9. Thus, it claimed (and the Commissioner here reiterates) that the tax was simply a 23 percent tax on the difference between what the companies’ flotation values should have been and what they actually were. B Petitioner PPL Corporation (PPL) was an owner, through a number of subsidiaries, of 25 percent of South Western Electricity plc, 1 of 12 government-owned elec-tric companies that were privatized in 1990 and that were subject to the tax. See 135 T.C. 304, 307, App. (2010) (diagram of PPL corporate structure in 1997). South Western Electricity’s total U. K. windfall tax burden was £90,419,265. In its 1997 federal income-tax return, PPL claimed a credit under §901 for its share of the bill. The Commissioner of Internal Revenue (Commissioner) rejected the claim, but the Tax Court held that the U. K. wind- fall tax was creditable for U. S. tax purposes under §901. See id., at 342. The Third Circuit reversed. 665 F.3d 60, 68 (2011). We granted certiorari, 568 U. S. ___ (2012), to resolve a Circuit split concerning the windfall tax’s creditability under §901. Compare 665 F. 3d, at 68, with Entergy Corp. & Affiliated Subsidiaries v. Commissioner, 683 F.3d 233, 239 (CA5 2012). II Internal Revenue Code §901(b)(1) provides that “[i]n the case of . . . a domestic corporation, the amount of any income, war profits, and excess profits taxes paid or accrued during the taxable year to any foreign country or to any possession of the United States” shall be creditable.[2] Under relevant Treasury Regulations, “[a] foreign levy is an income tax if and only if . . . [t]he predominant character of that tax is that of an income tax in the U. S. sense.” 26 CFR §1.901–2(a)(1). The parties agree that Treasury Regulation §1.901–2 applies to this case. That regulation codifies longstanding doctrine dating back to Biddle v. Commissioner, 302 U.S. 573, 578–579 (1938), and provides the relevant legal standard. The regulation establishes several principles relevant to our inquiry. First, the “predominant character” of a tax, or the normal manner in which a tax applies, is controlling. See id., at 579 (“We are here concerned only with the ‘standard’ or normal tax”). Under this principle, a for-eign tax that operates as an income, war profits, or excess profits tax in most instances is creditable, even if it may affect a handful of taxpayers differently. Creditability is an all or nothing proposition. As the Treasury Regulations confirm, “a tax either is or is not an income tax, in its entirety, for all persons subject to the tax.” 26 CFR §1.901–2(a)(1). Second, the way a foreign government characterizes its tax is not dispositive with respect to the U. S. creditability analysis. See §1.901–2(a)(1)(ii) (foreign tax creditable if predominantly “an income tax in the U. S. sense”). In Biddle, the Court considered the creditability of certain U. K. taxes on stock dividends under the substantively identical predecessor to §901. The Court recognized that “there is nothing in [the statute’s] language to suggest that in allowing the credit for foreign tax payments, a shifting standard was adopted by reference to foreign characterizations and classifications of tax legislation.” 302 U. S., at 578–579. See also United States v. Goodyear Tire & Rubber Co., 493 U.S. 132, 145 (1989) (noting in interpreting 26 U. S. C. §902 that Biddle is particularly applicable “where a contrary interpretation would leave” tax interpretation “to the varying tax policies of foreign tax authorities”); Heiner v. Mellon, 304 U.S. 271, 279, and n. 7 (1938) (state-law definitions generally not controlling in federal tax context). Instead of the foreign government’s characterization of the tax, the crucial inquiry is the tax’s economic effect. See Biddle, supra, at 579 (inquiry is “whether [a tax] is the substantial equivalent of payment of the tax as those terms are used in our own statute”). In other words, foreign tax creditability depends on whether the tax, if enacted in the U. S., would be an income, war profits, or excess profits tax. Giving further form to these principles, Treasury Regulation §1.901–2(a)(3)(i) explains that a foreign tax’s predominant character is that of a U. S. income tax “[i]f . . . the foreign tax is likely to reach net gain in the normal circumstances in which it applies.” The regulation then sets forth three tests for assessing whether a foreign tax reaches net gain. A tax does so if, “judged on the basis of its predominant character, [it] satisfies each of the realization, gross receipts, and net income requirements set forth in paragraphs (b)(2), (b)(3) and (b)(4), respectively, of this section.” §1.901–2(b)(1).[3] The tests indicate that net gain (also referred to as net income) consists of realized gross receipts reduced by significant costs and expenses attrib-utable to such gross receipts. A foreign tax that reaches net income, or profits, is creditable. III A It is undisputed that net income is a component of the U. K.’s “windfall tax” formula. See Brief for Respondent 23 (“The windfall tax takes into account a company’s prof-its during its four-year initial period”). Indeed, annual profit is a variable in the tax formula. U. K. Windfall Tax Act, sched. 1, §1, cls. 2(2) and 5. It is also undisputed that there is no meaningful difference for our purposes in the accounting principles by which the U. K. and the U. S. calculate profits. See Brief for Petitioners 47. The dis-agreement instead centers on how to characterize the tax formula the Labour Party adopted. The Third Circuit, following the Commissioner’s lead, believed it could look no further than the tax formula that the Parliament enacted and the way in which the Labour government characterized it. Under that view, the windfall tax must be considered a tax on the difference between a company’s flotation value (the total amount investors paid for the company when the government sold it) and an imputed “profit-making value,” defined as a company’s “average annual profit during its ‘initial period’ . . . times 9, the assumed price-to-earnings ratio.” 665 F. 3d, at 65. So characterized, the tax captures a portion of the difference between the price at which each company was sold and the price at which the Labour government believed each company should have been sold given the actual profits earned during the initial period. Relying on this characterization, the Third Circuit believed the windfall tax failed at least the Treasury Regulation’s realization and gross receipts tests because it reached some artificial form of valuation instead of profits. See id., at 67, and n. 3. In contrast, PPL’s position is that the substance of the windfall tax is that of an income tax in the U. S. sense. While recognizing that the tax ostensibly is based on the difference between two values, it argues that every “vari-able” in the windfall tax formula except for profits and flotation value is fixed (at least with regard to 27 of the 32 companies). PPL emphasizes that the only way the Labour government was able to calculate the imputed “profit-making value” at which it claimed companies should have been privatized was by looking after the fact at the actual profits earned by each company. In PPL’s view, it matters not how the U. K. chose to arrange the formula or what it claimed to be taxing, because a tax based on profits above some threshold is an excess profits tax, regardless of how it is mathematically arranged or what labels foreign law places on it. PPL, thus, contends that the windfall taxes it paid meet the Treasury Regulation’s tests and are credit-able under §901. We agree with PPL and conclude that the predominant character of the windfall tax is that of an excess profits tax, a category of income tax in the U. S. sense. It is important to note that the Labour government’s conception of “profit-making value” as a backward-looking analysis of historic profits is not a recognized valuation method; instead, it is a fictitious value calculated using an imputed price-to-earnings ratio. At trial, one of PPL’s expert witnesses explained that “ ‘9 is not an accurate P/E multiple, and it is not applied to current or expected future earnings.’ ” 135 T. C., at 326, n. 17 (quoting testimony). Instead, the windfall tax is a tax on realized net income disguised as a tax on the difference between two values, one of which is completely fictitious. See App. 251, Report ¶1.7 (“[T]he value in profit making terms described in the wording of the act . . . is not a real value: it is rather a construct based on realised profits that would not have been known at the date of privatisation”). The substance of the windfall tax confirms the accuracy of this observation. As already noted, the parties stipulated that the windfall tax could be calculated as follows: This formula can be rearranged algebraically to the following formula, which is mathematically and substantively identical:[4] The next step is to substitute the actual number of days for D. For 27 of the 32 companies subject to the windfall tax, the number of days was identical, 1,461 (or four years). Inserting that amount for D in the formula yields the following: Simplifying the formula by multiplying and dividing numbers reduces the formula to: As noted, FV represents the value at which each company was privatized. FV is then divided by 9, the arbitrary “price-to-earnings ratio” applied to every company. The economic effect is to convert flotation value into the profits a company should have earned given the assumed price-to-earnings ratio. See 135 T. C., at 327 (“ ‘In effect, the way the tax works is to say that the amount of profits you’re allowed in any year before you’re subject to tax is equal to one-ninth of the flotation price. After that, profits are deemed excess, and there is a tax’ ” (quoting testimony from the treasurer of South Western Electricity plc)). The annual profits are then multiplied by 4.0027, giving the total “acceptable” profits (as opposed to windfall profit) that each company’s flotation value entitled it to earn during the initial period given the artificial price-to-earnings ratio of 9. This fictitious amount is finally subtracted from actual profits, yielding the excess profits, which were taxed at an effective rate of 51.71 percent. The rearranged tax formula demonstrates that the windfall tax is economically equivalent to the difference between the profits each company actually earned and the amount the Labour government believed it should have earned given its flotation value. For the 27 companies that had 1,461-day initial periods, the U. K. tax formula’s substantive effect was to impose a 51.71 percent tax on all profits earned above a threshold. That is a classic excess profits tax. See, e.g., Act of Mar. 3, 1917, ch. 159, Tit. II, §201, 39Stat. 1000 (8 percent tax imposed on excess profits exceeding the sum of $5,000 plus 8 percent of invested capital). Of course, other algebraic reformulations of the windfall tax equation are possible. See 665 F. 3d, at 66; Brief for Anne Alstott et al. as Amici Curiae 21–23 (Alstott Brief). The point of the reformulation is not that it yields a particular percentage (51.75 percent for most of the companies). Rather, the algebraic reformulations illustrate the economic substance of the tax and its interrelationship with net income. The Commissioner argues that any algebraic rearrangement is improper, asserting that U. S. courts must take the foreign tax rate as written and accept whatever tax base the foreign tax purports to adopt. Brief for Respondent 28. As a result, the Commissioner claims that the analysis begins and ends with the Labour government’s choice to characterize its tax base as the difference between “profit-making value” and flotation value. Such a rigid construction is unwarranted. It cannot be squared with the black-letter principle that “tax law deals in economic realities, not legal abstractions.” Commissioner v. Southwest Exploration Co., 350 U.S. 308, 315 (1956). Given the artificiality of the U. K.’s method of calculating purported “value,” we follow substance over form and recognize that the windfall tax is nothing more than a tax on actual profits above a threshold. B We find the Commissioner’s other arguments unpersuasive as well. First, the Commissioner attempts to buttress the argument that the windfall tax is a tax on value by noting that some U. S. gift and estate taxes use actual, past profits to estimate value. Brief for Respondent 17–18 (citing 26 CFR §20.2031–3 (2012) and 26 U. S. C. §2032A). This argument misses the point. In the case of valuation for gift and estate taxes, past income may be used to estimate future income streams. But, it is future revenue-earning potential, reduced to market value, that is subject to taxation. The windfall profits tax, by contrast, undisputedly taxed past, realized net income alone. The Commissioner contends that the U. K. was not trying to establish valuation as of the 1997 date on which the windfall tax was enacted but instead was attempting to derive a proper flotation valuation as of each company’s flotation date. Brief for Respondent 21. The Commissioner asserts that there was no need to estimate future in- come (as in the case of the gift or estate recipient) because actual revenue numbers for the privatized companies were available. Ibid. That argument also misses the mark. It is true, of course, that the companies might have been privatized at higher flotation values had the government recognized how efficient—and thus how profitable—the companies would become. But, the windfall tax requires an underlying concept of value (based on actual ex post earnings) that would be alien to any valuer. Taxing ac-tual, realized net income in hindsight is not the same as considering past income for purposes of estimating future earning potential. The Commissioner’s reliance on Example 3 to the Treasury Regulation’s gross receipts test is also misplaced. Id., at 37–38; 26 CFR §1.901–2(b)(3)(ii), Ex. 3. That example posits a petroleum tax in which “gross receipts from extraction income are deemed to equal 105 percent of the fair market value of petroleum extracted. This computation is designed to produce an amount that is greater than the fair market value of actual gross receipts.” Ibid. Under the example, a tax based on inflated gross receipts is not creditable. The Third Circuit believed that the same type of algebraic rearrangement used above could also be used to rearrange a tax imposed on Example 3. It hypothesized: “Say that the tax rate on the hypothetical extraction tax is 20%. It is true that a 20% tax on 105% of receipts is mathematically equivalent to a 21% tax on 100% of receipts, the latter of which would satisfy the gross receipts requirement. PPL proposes that we make the same move here, increasing the tax rate from 23% to 51.75% so that there is no multiple of receipts in the tax base. But if the regulation allowed us to do that, the example would be a nullity. Any tax on a multiple of receipts or profits could satisfy the gross receipts requirement, because we could reduce the starting point of its tax base to 100% of gross receipts by imagining a higher tax rate.” 665 F. 3d, at 67. The Commissioner reiterates the Third Circuit’s argument. Brief for Respondent 37–38. There are three basic problems with this approach. As the Fifth Circuit correctly recognized, there is a difference between imputed and actual receipts. “Example 3 hypothesizes a tax on the extraction of petroleum where the income value of the petroleum is deemed to be . . . deliberately greater than actual gross receipts.” Entergy Corp., 683 F. 3d, at 238. In contrast, the windfall tax depends on actual figures. Ibid. (“There was no need to calculate imputed gross receipts; gross receipts were actually known”). Example 3 simply addresses a different foreign taxation issue. The argument also incorrectly equates imputed gross receipts under Example 3 with net income. See 665 F. 3d, at 67 (“[a]ny tax on a multiple of receipts or profits”). As noted, a tax is creditable only if it applies to realized gross receipts reduced by significant costs and expenses attributable to such gross receipts. 26 CFR §1.901–2(b)(4)(i). A tax based solely on gross receipts (like the Third Circuit’s analysis) would be noncreditable because it would fail the Treasury Regulation’s net income requirement. Finally, even if expenses were subtracted from imputed gross receipts before a tax was imposed, the effect of inflating only gross receipts would be to inflate revenue while holding expenses (the other component of net income) constant. A tax imposed on inflated income minus actual expenses is not the same as a tax on net income.[5] For these reasons, a tax based on imputed gross receipts is not creditable. But, as the Fifth Circuit explained in rejecting the Third Circuit’s analysis, Example 3 is “faci-ally irrelevant” to the analysis of the U. K. windfall tax, which is based on true net income. Entergy Corp., supra, at 238.[6] * * * The economic substance of the U. K. windfall tax is that of a U. S. income tax. The tax is based on net income, and the fact that the Labour government chose to characterize it as a tax on the difference between two values is not dispositive under Treasury Regulation §1.901–2. Therefore, the tax is creditable under §901. The judgment of the Third Circuit is reversed. It is so ordered. Notes 1 A price-to-earnings ratio “is defined as the stock price divided by annual earnings per share. It is typically calculated by dividing the current stock price by the sum of the previous four quarters of earnings.” 3 New Palgrave Dictionary of Money & Finance 176 (1992). 2 Prior to enactment of what is now §901, income earned overseas was subject to taxes not only in the foreign country but also in the United States. See Burnet v. Chicago Portrait Co., 285 U.S. 1, 7 (1932). The relevant text making “income, war-profits and excess-profits taxes” creditable has not changed since 1918. See Revenue Act of 1918, §§222(a)(1), 238(a), 40Stat. 1073, 1080. 3 The relevant provisions provide as follows: “A foreign tax satisfies the realization requirement if, judged on the basis of its predominant character, it is imposed—(A) Upon or subsequent to the occurrence of events (‘realization events’) that would result in the realization of income under the income tax provisions of the Internal Revenue Code.” 26 CFR §1.901–2(b)(2)(i). “A foreign tax satisfies the gross receipts requirement if, judged on the basis of its predominant character, it is imposed on the basis of—(A) Gross receipts; or (B) Gross receipts computed under a method that is likely to produce an amount that is not greater than fair market value.” §1.901–2(b)(3)(i). “A foreign tax satisfies the net income requirement if, judged on the basis of its predominant character, the base of the tax is computed by reducing gross receipts . . . to permit—(A) Recovery of the significant costs and expenses (including significant capital expenditures) attributable, under reasonable principles, to such gross receipts; or (B) Recovery of such significant costs and expenses computed under a method that is likely to produce an amount that approximates, or is greater than, recovery of such significant costs and expenses.” §1.901–2(b)(4)(i). 4 The rearrangement requires only basic algebraic manipulation. First, because order of operations does not matter for multiplication and division, the formula is rearranged to the following: Next, everything outside the brackets is multiplied by and everything inside the brackets is multiplied by the inverse, . The effect is the same as multiplication by the number one (since = 1). That multiplication yields the formula in the text. 5 Mathematically, the Third Circuit’s hypothetical was incomplete. It should have been: 20% [ 105% (Gross Receipts) − Expenses ] = Tax But 105% of gross receipts minus expenses is not net income. Thus, the 20% tax is not a tax on net income and is not creditable. 6 An amici brief argues that because two companies had initial periods substantially shorter than four years, the predominant character of the U. K. windfall tax was not a tax on income in the U. S. sense. See Alstott Brief 29 (discussing Railtrack Group plc and British Energy plc). The argument amounts to a claim that two outliers changed the predominant character of the U. K. tax. See 135 T.C. 304, 340, n. 33 (2010) (rejecting this view). The Commissioner admitted at oral argument that it did not preserve this argument, a fact reflected in its briefing before this Court and in the Third Circuit. See Tr. of Oral Arg. 35–36; Opening Brief for Appellant and Reply Brief for Appellant in No. 11–1069 (CA3). We therefore express no view on its merits.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus PPL CORP. et al. v. COMMISSIONER OF INTERNAL REVENUE certiorari to the united states court of appeals for the third circuit No. 12–43. Argued February 20, 2013—Decided May 20, 2013 In 1997, the United Kingdom (U. K.), newly under Labour Party rule, imposed a one-time “windfall tax” on 32 U. K. companies privatized between 1984 and 1996 by the Conservative government. The companies had been sold to private parties through an initial sale of shares, known as a “flotation.” Some of the companies were required to continue providing services for a fixed period at the same rates they had offered under government control. Many of those companies became dramatically more efficient and earned substantial profits in the process. Petitioner PPL Corporation (PPL), part owner of a privatized U. K. company subject to the windfall tax, claimed a credit for its share of the bill in its 1997 federal income-tax return, relying on Internal Revenue Code §901(b)(1), which states that any “income, war profits, and excess profits taxes” paid overseas are creditable against U. S. income taxes. Treasury Regulation §1.901–2(a)(1) interprets this section to mean that a foreign tax is creditable if its “predominant character” “is that of an income tax in the U. S. sense.” The Commissioner of Internal Revenue (Commissioner) rejected PPL’s claim, but the Tax Court held that the U. K. windfall tax was creditable for U. S. tax purposes under §901. The Third Circuit reversed. Held: The U. K. tax is creditable under §901. . (a) Treasury Regulation §1.901–2, which codifies longstanding doctrine dating back to Biddle v. Commissioner, 302 U.S. 573, 578–579 (1938), provides the relevant legal standard. First, a tax’s “predominant character,” or the normal manner in which a tax applies, is controlling. See id., at 579. Thus, a foreign tax that operates as an income, war profits, or excess profits tax for most taxpayers is generally creditable. Second, foreign tax creditability depends not on the way a foreign government characterizes its tax but on whether the tax, if enacted in the U. S., would be an income, war profits, or excess profits tax. See §1.901–2(a)(1)(ii). Giving further form to these principles, §1.901–2(a)(3)(i) explains that a foreign tax’s predominant character is that of a U. S. income tax “[i]f . . . the foreign tax is likely to reach net gain in the normal circumstances in which it applies.” Three tests set forth in the regulations provide guidance in making this assessment, see §1.901–2(b)(1). The tests indicate that net gain consists of realized gross receipts reduced by significant costs and expenses attributable to such gross receipts, in combination known as net income. A foreign tax that reaches net income, or profits, is creditable. . (b) The U. K. windfall tax’s predominant character is that of an excess profits tax, a category of income tax in the U. S. sense. The Labour government’s conception of “profit-making value” as a backward-looking analysis of historic profits is not a typical valuation method. Rather, it is a tax on realized net income disguised as a tax on the difference between two values, one of which is a fictitious value calculated using an imputed price-to-earnings ratio. The substance of the windfall tax confirms this conclusion. When rearranged, the U. K’s formula demonstrates that the windfall tax is economically equivalent to the difference between the profits each company actually earned and the amount the Labour government believed it should have earned given its flotation value. For most of the relevant companies, the U. K. formula’s substantive effect was to impose a 51.71 percent tax on all profits above a threshold, a classic excess profits tax. The Commissioner claims that any algebraic rearrangement is improper because U. S. courts must take the foreign tax rate as written and accept whatever tax base the foreign tax purports to adopt. But such a rigid construction cannot be squared with the black-letter principle that “tax law deals in economic realities, not legal abstractions.” Commissioner v. Southwest Exploration Co., 350 U.S. 308, 315. Given the artificiality of the U. K.’s calculation method, this Court follows substance over form and recognizes that the windfall tax is nothing more than a tax on actual profits above a threshold. . (c) The Commissioner’s additional arguments in support of his position are similarly unpersuasive. . 665 F.3d 60, reversed. Thomas, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion.

In 1997, the United Kingdom imposed a one-time "windfall tax" on 32 government-owned elec-tric companies that were privatized in 1990 and that were subject to the tax. The Internal Revenue Code (IRC) provides that any "income, war profits, and excess profits taxes" paid overseas are creditable against U. S. income taxes. 26 U.S. C. §901(b)(1). Treasury Regulations interpret this section to mean that a foreign tax is creditable if its "predominant character" is that of an income tax in the United States. Petitioner PPL Corporation (PPL) was an owner, through a number of subsidiaries, of 25 percent of one of the companies that, during the 1990-1990 period, was privatized. These companies were sold to private parties through an initial sale of shares, known as a "flotation" sale. Respondent Conservative Party, which had unsuccessfully opposed privatization, used the companies as a campaign issue against the Conservative Party in 1997, and defeated the party at the polls in that election. Prior to coming to power, petitioners hired accounting firm Arthur Andersen to structure a tax that would capture excess, or excess, profits earned during the initial years in which the companies were prohibited from increasing rates. The tax imposed a 23 percent tax on any such earnings earned by such companies. For 27 of the 32 companies, the number of days in the initial period was 1,461 days (or four years). Of the remaining five companies, one had no tax liability because it did not earn any windfall profits. Three had initial periods close to four years, and the last, shortly before the Labour Party took power, had an initial period of only 316 days. In the IRC, respondents set forth a price-to-earnings ratio that was selected for the relevant statute for all companies subject to tax during the relevant period. Respondent Tax Court asserted that the tax should have been given the correct term for the initial flotation value, and that it was simply a 23% tax on the difference between what the companies should have assumed and what they actually were. PPL claimed a credit under §901 for its share of the bill in its 1997 federal income-tax return, but the Tax Court held that the U. K. wind- fall tax was creditable for U. S. tax purposes. Held: The United Kingdom windfall tax, creditable under §§901 and 2(a)(1) of the IRC. . (a) The predominant character of the tax is the one that controls whether a tax reaches net income, or profits, under the predominant character test of Treasury Regulation §1.901. Treasury Regulations. A tax based on profits above some threshold is an excess profits tax, regardless of how it is mathematically arranged or what labels foreign law places on it. See, e.g., United States v. Goodyear Tire & Rubber Co., 493 U. G. 132, 145. Biddle v. Commissioner,, followed. This predominant character is also important in the sense that the government-state tax is not a tax on actual profits above a threshold. It is irrelevant that the Treasury Regulation chose to characterize its tax base as the difference in value between profit-making value and flotation values. Moreover, the use of past income is irrelevant, since the tax requires an underlying concept of value based on actual ex post earnings that would be alien to any valuer. Taxing ac-tual, realized net income in hindsight is not the same as considering past income for purposes of estimating future earning potential. Thus, the windfall taxes it paid met the requirements of the above tests and are credit-able. Cf. Alstott Brief 29. Pp. 665 F.3d 60, reversed. (b) The CHIEF JUSTICE did not preserve the argument that, because two companies in the first half of the fiscal year had their initial periods of less than four years than did the second half, the 20% tax was not creditable because of the disparity between the profits each company earned and the amount the government believed it should have earned given its flotation value. That argument misplaces the mark, since it erroneously equates imputed gross receipts under Example 3 with net income. Here, the formula is rearranged to the following: Next, everything outside the brackets is multiplied by, and everything inside the brackets by the inverse, which yields the formula for calculating the tax: 20% [ 105% (Gross Receipts) − Expenses ] = Tax But 105% of gross receipts minus expenses is not net income; thus, the effective rate of the 20%. is 51.71 percent. Although the tax formula for the 27 companies that had 1461-day initial periods was assumed to impose a 51% tax, the court below held that there was not

2012_10-930

https://www.oyez.org/cases/2012/10-930

. These two cases present the question whether the incompetence of a state prisoner requires suspension of the prisoner’s federal habeas corpus proceedings. We hold that neither 18 U. S. C. §3599 nor 18 U. S. C. §4241 provides such a right and that the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent. I A Ernest Valencia Gonzales was convicted by an Arizona jury of felony murder, armed robbery, aggravated assault, first-degree burglary, and theft. The convictions arose from Gonzales’ repeated stabbing of Darrel and Deborah Wagner in front of their 7-year-old son during a burglary of the Wagners’ home. Darrel Wagner died from the stabbing, while Deborah Wagner survived but spent five days in intensive care. The trial court sentenced Gonzales to death on the murder charge and to various prison terms for the other crimes. After exhausting state remedies, Gonzales filed a petition for a writ of habeas corpus in Federal District Court on November 15, 1999. While the petition was pending, Gonzales’ appointed counsel moved to stay the proceedings, contending that Gonzales was no longer capable of rationally communicating with or assisting counsel. He argued that mental incompetence entitled Gonzales to a stay under Ninth Circuit precedent. See Rohan v. Woodford, 334 F.3d 803 (2003). In Rohan, the Ninth Circuit held that the federal statute guaranteeing state capital prisoners a right to counsel in federal habeas proceedings, 21 U. S. C. §848(q)(4)(B) (2000 ed.) (now codified as 18 U. S. C. §3599(a)(2)), could not “be faithfully enforced unless courts ensure that a petitioner is competent,” 334 F. 3d, at 813. Rohan thus concluded that “where an incompetent capital habeas petitioner raises claims that could potentially benefit from his ability to communicate rationally, refusing to stay proceedings pending restoration of competence denies him his statutory right to assistance of counsel, whether or not counsel can identify with precision the information sought.” Id., at 819. Applying Rohan, the District Court denied a stay after concluding that the claims properly before it were record based or resolvable as a matter of law and thus would not benefit from Gonzales’ input. The court found it unnec-essary to determine whether Gonzales was incompetent, though it did find that he possessed “at least a limited capacity for rational communication.” Gonzales v. Schriro, 617 F. Supp. 2d 849, 863 (Ariz. 2008). Gonzales thereafter filed an emergency petition for a writ of mandamus in the Ninth Circuit. While Gonzales’ petition was pending, the Ninth Circuit decided Nash v. Ryan, 581 F.3d 1048 (2009), which held that habeas petitioners have a right to competence on appeal, even though appeals are entirely record based. Id., at 1050 (“While an appeal is record-based, that does not mean that a habeas petitioner in a capital case is relegated to a nonexistent role. Meaningful assistance of appellate counsel may require rational communication between counsel and a habeas petitioner”). Applying Nash and Rohan, the court granted the writ of mandamus, concluding that even though Gonzales’ “exhausted claims are record-based or legal in nature, he is entitled to a stay pending a competency determination” under 18 U. S. C. §3599. In re Gonzales, 623 F.3d 1242, 1244 (2010). We granted certiorari to determine whether §3599 provides a statutory right to competence in federal habeas proceedings. 565 U. S. ___ (2012). B Sean Carter was convicted by an Ohio jury of aggra-vated murder, aggravated robbery, and rape, and sentenced to death for anally raping his adoptive grandmother, Veader Prince, and stabbing her to death. After exhausting his state-court appeals, Carter initiated federal habeas proceedings on March 19, 2002, in the Northern District of Ohio. Carter eventually filed a third amended petition, along with a motion requesting a competency determi-nation and a stay of the proceedings. The District Court granted the motion. Following several psychiatric evaluations and a com-petency determination, the District Court found Carter incompetent to assist counsel. Applying the Ninth Circuit’s test in Rohan, it determined that Carter’s assistance was required to develop four of his exhausted claims. As a result, the court dismissed his habeas petition without prejudice and prospectively tolled the statute of limitations. Carter v. Bradshaw, 583 F. Supp. 2d 872, 884 (2008). The State appealed. The Sixth Circuit acknowledged that “[f]ederal habeas petitioners facing the death penalty for state criminal convictions do not enjoy a constitutional right to competence.” Carter v. Bradshaw, 644 F.3d 329, 332 (2011). It nevertheless located a statutory right to competence in §4241, relying, in part, on this Court’s decision in Rees v. Peyton, 384 U.S. 312 (1966) (per curiam) (Rees I ).[1] 644 F. 3d, at 332. The Sixth Circuit explained: “By applying section 4241 to habeas actions, Rees addresses the situation where a habeas petitioner awaiting the death penalty may seek to forego any collateral attacks on his conviction or sentence, and defines a statutory right for the petitioner to be competent enough to (1) understand the nature and consequences of the proceedings against him, and (2) assist properly in his defense.” Id., at 333. The court concluded that “[a]nytime a capital habeas petitioner affirmatively seeks to forego his habeas petition, whether by action or inaction, . . . a district court may employ section 4241.” Id., at 334. The court therefore amended the District Court’s judgment and ordered that Carter’s petition be stayed in-definitely with respect to any claims that required his assistance. Id., at 336–337. Judge Rogers dissented, arguing that there was no constitutional or statutory basis for the court’s decision. Id., at 337–342. We granted certiorari to determine whether §4241 provides a statutory right to competence in federal habeas proceedings. 565 U. S. ___ (2012). II Both the Ninth and Sixth Circuits have concluded that death row inmates pursuing federal habeas are entitled to a suspension of proceedings when found incompetent. The Ninth Circuit located this right in §3599, while the Sixth Circuit located it in §4241. Neither section provides such a right. A Section 3599(a)(2) guarantees federal habeas petitioners on death row the right to federally funded counsel.[2] The statute provides that petitioners who are “financially unable to obtain adequate representation . . . shall be entitled to the appointment of one or more attorneys.” Appointed attorneys are required to have experience in death penalty litigation, §§3599(b)–(d), and, once appointed, are directed to “represent the defendant throughout every subsequent stage of available judicial proceedings,” §3599(e). The statute also gives district courts the power to authorize funding for “investigative, expert, or other services” as are “reasonably necessary for the representation of the defendant.” §3599(f). But §3599 does not direct district courts to stay proceedings when habeas petitioners are found incompetent.[3] In addition to lacking any basis in the statutory text, the assertion that the right to counsel implies a right to competence is difficult to square with our constitutional precedents. The right to counsel is located in the Sixth Amendment. (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”) If the right to counsel carried with it an implied right to competence, the right to competence at trial would flow from the Sixth Amendment. But “[w]e have repeatedly and consistently recognized that ‘the criminal trial of an incompetent defendant violates due process,’ ” not the Sixth Amendment. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Medina v. California, 505 U.S. 437, 453 (1992); emphasis added); see also Drope v. Missouri, 420 U.S. 162, 172 (1975) (“[T]he failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial” (citing Pate v. Robinson, 383 U.S. 375, 385 (1966))). It stands to reason that the benefits flowing from the right to counsel at trial could be affected if an incompe-tent defendant is unable to communicate with his attorney. For example, an incompetent defendant would be unable to assist counsel in identifying witnesses and deciding on a trial strategy. For this reason, “[a] defendant may not be put to trial unless he ‘ “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against him.” ’ ” Cooper, supra, at 354 (quoting Dusky v. United States, 362 U.S. 402 (1960) (per curiam)). Notwithstanding the connection between the right to competence at trial and the right to counsel at trial, we have never said that the right to competence derives from the right to counsel. We will not assume or infer that Congress intended to depart from our precedents and locate a right to competence in federal habeas proceedings within the right to counsel. “We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent.” Merck & Co. v. Reynolds, 559 U. S. ___, ___ (2010) (slip op., at 12). The Ninth Circuit located a statutory right to competence in §3599. 623 F. 3d, at 1245 (citing Rohan, 334 F.3d 803, and Nash, 581 F. 3d 1048). Because Rohan is the Ninth Circuit’s controlling precedent, we briefly address that decision. In Rohan, a habeas petitioner asserted a right to com-petency based both on the Due Process Clause and on 21 U. S. C. §848(q)(4)(B) (2000 ed.). After discussing the history of the common law, which prohibited the indictment, trial and execution of mentally incompetent defendants,[4] the Court of Appeals stated that the petitioner’s due process claim raised “substantial” “constitutional ques-tions.” Rohan, 334 F. 3d, at 814. This conclusion is puzzling in light of the Ninth Circuit’s acknowledgment that there is “no constitutional right to counsel on habeas,” id., at 810 (citing Murray v. Giarratano, 492 U.S. 1, 10 (1989) (plurality opinion)), and that “there is no due process right to collateral review at all,” 334 F. 3d, at 810 (citing United States v. MacCollom, 426 U.S. 317, 323 (1976) (plurality opinion)). The Ninth Circuit was simply incorrect in suggesting that, in this case, there might be a constitutional concern—much less a “substantial” one—raised by the petitioner’s due process claim. Invoking the canon of constitutional avoidance, the Ninth Circuit gave the petitioner the practical benefit of a due process right to competence in federal habeas proceedings through its interpretation of §848(q)(4)(B).[5] 334 F. 3d, at 814. In analyzing that statute, the Rohan court relied on a Ninth Circuit en banc opinion in Calderon v. United States Dist. Court for Central Dist. of Cal., 163 F.3d 530 (1998) (Kelly V), overruled in unrelated part, Woodford v. Garceau, 538 U.S. 202 (2003), which held that a prisoner’s incompetence is grounds for equitably tolling the Antiterrorism and Effective Death Penalty Act of 1996’s (AEDPA) 1-year statute of limitations for filing habeas petitions. The Rohan court purported to be bound by the “rationale” of Kelly V—that a prisoner’s incompetence could “eviscerate the statutory right to counsel,”[6] Kelly V, supra, at 541—and concluded that “[i]f a petitioner’s statutory rights depend on his ability to communicate rationally, compelling him to pursue relief while incompetent is no less an infringement than dismissing his late petition.” 334 F. 3d, at 814. We are not persuaded by the Ninth Circuit’s assertion that a habeas petitioner’s mental incompetency could “evis-cerate the statutory right to counsel” in federal habeas proceedings. Given the backward-looking, record-based nature of most federal habeas proceedings, counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner’s competence. Indeed, where a claim is “adjudicated on the merits in State court proceedings,” 28 U. S. C. §2254(d) (2006 ed.), counsel should, in most circumstances, be able to identify whether the “adjudication . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” §2254(d)(1), without any evi-dence outside the record. See Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 9) (“[R]eview under [28 U. S. C.] §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. . . . This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time—i.e., the record before the state court”). Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients’ assistance. Rohan also cited Rees I, 384 U.S. 312, in support of its conclusion. 334 F. 3d, at 815. In Rees I, a state inmate on death row filed a petition for a writ of habeas corpus in District Court, alleging that the state-court conviction violated his constitutional rights. 384 U. S., at 313. The District Court denied his petition, and the Court of Appeals affirmed. Ibid. Shortly after Rees’ counsel filed a petition for certiorari with this Court, Rees directed his counsel to withdraw the petition and to forgo any further proceedings. Counsel advised the Court that he could not accede to these instructions without a psychiatric evaluation of Rees, because there was some doubt as to Rees’ mental competency. Ibid. In response, the Court directed the District Court to determine Rees’ mental competence. Id., at 313–314. After the District Court conducted a hearing and found Rees incompetent, the Court issued a one-sentence order directing that the petition for certiorari be “held without action.” Rees v. Peyton, 386 U.S. 989 (1967) (Rees II ).[7] When Rees died several decades later, the Court dismissed the petition. Rees v. Superintendent of Va. State Penitentiary, 516 U.S. 802 (1995) (Rees III ). The Ninth Circuit concluded that “[t]he record in Rees II shows that incompetence is grounds for staying habeas proceedings.” Rohan, supra, at 815. This conclusion is unwarranted. Rees I concerned whether an incompetent habeas petitioner may withdraw his certiorari petition, and it provides no clear answer even to that question. Likewise, the unique, one-sentence order in Rees II offered no rationale for the decision to hold Rees’ petition. As a result, Rees offers no support for federal habeas petitioners seeking to stay district court proceedings or for the Ninth Circuit’s opinions in Rohan, Nash, or this case.[8] Gonzales barely defends the Ninth Circuit’s interpretation of §3599.[9] He offers a single, halfhearted argument in support of the Ninth Circuit’s opinion based on our statement in McFarland v. Scott, 512 U.S. 849, 858 (1994), that “the right to counsel necessarily includes a right for that counsel meaningfully to research and present a defendant’s habeas claims.” But McFarland was addressing whether a district court could issue a stay of execution after a capital prisoner had filed a request for counsel but before he had filed his habeas petition. Id., at 854–858. We held that a district court may stay a capital prisoner’s execution once the prisoner has invoked his statutory right to counsel. Id., at 859. McFarland has no relevance here where Gonzales is not seeking a stay of execution, but rather a stay of the District Court’s proceedings. Moreover, Gonzales moved for a stay more than six years after initiating his habeas petition. This was certainly ample time for his attorney to research and present the claims. For the foregoing reasons, we hold that §3599 does not provide federal habeas petitioners with a “statutory right” to competence.[10] B The Sixth Circuit reached the same conclusion as the Ninth Circuit but located the statutory right to competence during habeas proceedings in 18 U. S. C. §4241. Relying largely on Rees I, the Sixth Circuit concluded that §4241 provides a statutory right to competence. 644 F. 3d, at 333. But as discussed, Part II–A, supra, Rees I did not recognize a statutory right to competence in federal ha-beas proceedings.[11] Moreover, §4241 does not even apply to such proceedings. Section 4241(a) provides: “At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, or at any time after the commencement of probation or supervised release and prior to the completion of the sentence, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suf-fering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” By its own terms, §4241 applies only to trial proceedings prior to sentencing and “at any time after the commencement of probation or supervised release.” Federal habeas proceedings, however, commence after sentencing, and federal habeas petitioners, by definition, are incarcerated, not on probation. Furthermore, §4241, like the rest of Title 18 generally, applies exclusively to federal defendants and probationers subject to prosecution by the United States. Carter is not, and does not claim to be, a federal defendant. Rather, he is a state prisoner challenging the basis of his conviction in a federal civil action. See Blair v. Martel, 645 F.3d 1151, 1155 (CA9 2011) (“By its own terms, §4241 does not apply unless a federal criminal defendant is on trial or is released on probation”). Finally, §4241(a) authorizes the district court to grant a motion for a competency determination if there is reasonable cause to believe that the defendant’s mental incompetence renders him “unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” (Emphasis added.) See also §4241(d).[12] A habeas proceeding under §2254, however, is not a “proceedin[g] against” the habeas petitioner; this, on the other hand, is a civil action against the warden of the state prison. And, a federal habeas petitioner does not mount a “defense” to the government’s prosecution. Rather, the petitioner collaterally attacks his conviction at an earlier state trial. Accordingly, the statutory right to competence provided in §4241 is simply inapplicable to federal habeas proceedings. We would address Carter’s arguments in defense of the Sixth Circuit’s decision, but, there are none. Carter’s brief informed us that “[t]his Court need not consider the statutory argument with which the [petitioner’s] brief begins—i.e., that there is no ‘statutory right’ under 18 U. S. C. §4241 to be competent in habeas proceedings.” Brief for Respondent in No. 11–218, p. 15. Apparently, Carter found the Sixth Circuit’s reasoning indefensible. We agree. III Both Gonzales and Carter argued at length in their briefs and at oral argument that district courts have the equitable power to stay proceedings when they determine that habeas petitioners are mentally incompetent.[13] Neither petitioner disputes that “[d]istrict courts . . . ordinarily have authority to issue stays, where such a stay would be a proper exercise of discretion.” Rhines v. Weber, 544 U.S. 269, 276 (2005) (citation omitted); see also Enelow v. New York Life Ins. Co., 293 U.S. 379, 382 (1935) (explaining that a district court may stay a case “pending before it by virtue of its inherent power to control the progress of the cause so as to maintain the orderly processes of justice”). Similarly, both petitioners agree that “AEDPA does not deprive district courts of [this] authority.” Rhines, supra, at 276. Petitioners and respondents disagree, however, about the types of situations in which a stay would be appropriate and about the permissible duration of a competency-based stay. We do not presume that district courts need unsolicited advice from us on how to manage their dockets. Rather, the decision to grant a stay, like the decision to grant an evidentiary hearing, is “generally left to the sound discretion of district courts.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). For pur-poses of resolving these cases, it is unnecessary to determine the precise contours of the district court’s discretion to issue stays. We address only its outer limits. A In Gonzales’ case, the District Court correctly found that all of Gonzales’ properly exhausted claims were record based or resolvable as a matter of law, irrespective of Gonzales’ competence.[14] 617 F. Supp. 2d, at 863; see also State v. Gonzales, 181 Ariz. 502, 509–515, 892 P.2d 838, 845–851 (1995) (adjudicating Gonzales’ claims on the merits). The court therefore denied Gonzales’ motion for a stay. The District Court did not abuse its discretion in so holding, because a stay is not generally warranted when a petitioner raises only record-based claims subject to 28 U. S. C. §2254(d). As previously noted, review of such claims “is limited to the record that was before the state court that adjudicated the claim on the merits.” Pin-holster, 563 U. S., at ___ (slip op., at 9). Accordingly, any evidence that a petitioner might have would be inadmis-sible. Ibid. (“[T]he record under review is limited to the record in existence at that same time—i.e., the record before the state court”). Because federal habeas is “a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction through appeal,” the types of errors redressable under §2254(d) should be apparent from the record. Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13) (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment)). Counsel can read the record. B In Carter’s case, the District Court concluded that four of Carter’s claims could potentially benefit from Carter’s assistance.[15] However, three of these claims were adjudicated on the merits in state postconviction proceedings and, thus, were subject to review under §2254(d). See State v. Carter, No. 99–T–0133, 2000 Ohio App. LEXIS 5935, *5–*13 (Dec. 15, 2000). Any extrarecord evidence that Carter might have concerning these claims would therefore be inadmissible. Pinholster, supra, at ___. Consequently, these claims do not warrant a stay. It is unclear from the record whether Carter exhausted the fourth claim.[16] If that claim was exhausted, it too would be record based. But even if Carter could show that the claim was both unexhausted and not procedurally defaulted,[17] an indefinite stay would be inappropriate. “AEDPA’s acknowledged purpose” is to “ ‘reduc[e] delays in the execution of state and federal criminal sentences.’ ” Schriro, supra, at 475 (quoting Woodford, 538 U. S., at 206). “Staying a federal habeas petition frustrates AEDPA’s objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings.” Rhines, 544 U. S., at 277. In the context of discussing stay and abeyance procedures, we observed: “[N]ot all petitioners have an incentive to obtain federal relief as quickly as possible. In particular, capital petitioners might deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of death. Without time limits [on stays], petitioners could frustrate AEDPA’s goal of finality by dragging out indefinitely their federal ha-beas review.” Id., at 277–278. The same principle obtains in the context of competency-based stays. At some point, the State must be allowed to defend its judgment of conviction.[18] If a district court concludes that the petitioner’s claim could substantially benefit from the petitioner’s assistance, the district court should take into account the likelihood that the petitioner will regain competence in the foreseeable future. Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State’s attempts to defend its presumptively valid judgment. IV The judgment of the Ninth Circuit is reversed. We vacate the judgment of the Sixth Circuit and remand the case for proceedings consistent with this opinion. It is so ordered. Notes 1 In Rees, we held indefinitely a petition for certiorari after an in-competent capital inmate sought to withdraw his petition prior to our review. 384 U. S., at 313–314. See infra, at 12–14. 2 “In any postconviction proceeding under [ 28 U. S. C. §2254 or §2255], seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f ).” 18 U. S. C. §3599(a)(2). 3 In fact, §3599(e), which contains the section’s sole reference to “competency,” cuts against the Ninth Circuit’s conclusion. That section provides that appointed attorneys “shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.” We doubt that Congress would have authorized counsel to represent inmates in postconviction competency proceedings only if the inmates were competent. 4 Blackstone explained the common-law rule as follows: “[I]f a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the human-ity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.” 4 W. Blackstone, Commentaries on the Laws of England 24–25 (1769). 5 As noted supra, at 2, §848(q)(4)(B) has been superseded by 18 U. S. C. §3599(a)(2). 6 It is unclear how Kelly V’s determination that mental incompetence is grounds for AEDPA equitable tolling could possibly control the outcome in Rohan, which had nothing to do with AEDPA’s statute of limitations. The relevant questions for equitable tolling purposes are whether the petitioner has “ ‘been pursuing his rights diligently’ ” and whether “ ‘some extraordinary circumstance stood in his way.’ ” Holland v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 16–17) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). But the propriety of equitably tolling AEDPA’s statute of limitations in the case of a men-tally incompetent petitioner has nothing to do with the statutory right to counsel. The Ninth Circuit has held that habeas petitioners who do not have a statutory right to counsel (i.e., all habeas petitioners other than those on death row) may still avail themselves of equitable tolling if they are mentally incompetent. See, e.g., Bills v. Clark, 628 F.3d 1092, 1097 (2010) (establishing standard for deciding equitable tolling claims predicated on mental incompetence); Laws v. Lamarque, 351 F.3d 919, 924–925 (2003) (recognizing that mental incompetence can give rise to equitable tolling for AEDPA’s statute of limitations). 7 This order was issued after the Clerk of the Court spoke with the attorneys for Virginia and for the petitioner and proposed that the Court hold the petition indefinitely. See Memorandum from John F. Davis, Clerk of Court, to The Chief Justice (Mar. 31, 1967); see also Crocker, Not To Decide Is To Decide: The U. S. Supreme Court’s Thirty-Year Struggle With One Case About Competency To Waive Death Penalty Appeals, 49 Wayne L. Rev. 885, 916 (2004). Although Virginia originally opposed the idea of an indefinite stay, see Memorandum for Respondent in Rees v. Peyton, O. T. 1966, No. 9, Misc., pp. 2–3 (Mar. 14, 1967), it eventually accepted the proposal, see Memorandum from John F. Davis, supra, at 2 (“In summary, counsel for both parties do not really present any objection to the procedure proposed in the case, but neither of them accepts it with enthusiasm”). 8 Moreover, we note that Rees is a pre-AEDPA case. To whatever, extent Rees can be read to provide guidance in the habeas context, that guidance must pass muster under AEDPA. 9 See Brief for Respondent in No. 10–930, p. 13 (“The State and the Solicitor General argue that the federal habeas right-to-counsel provision, 18 U. S. C. §3599(a)(2), should not be interpreted to create a ‘right to competence’ . . . . However, that is not the question presented in this case. The issue is whether courts have authority to issue a stay, not whether capital habeas petitioners enjoy a freestanding ‘right to com-petence,’ or what the contours of such a right may be. The Court need not reach that question in order to uphold the discretionary, and temporary, stay of proceedings issued in this case”). Notwithstanding Gon-zales’ attempt to rewrite the question presented, we granted certiorari on the following question: “Did the Ninth Circuit err when it held that 18 U. S. C. §3599(a)(2)—which provides that an indigent capital state inmate pursuing federal habeas relief ‘shall be entitled to the appointment of one or more attorneys’—impliedly entitles a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel? 10 Gonzales suggests that 28 U. S. C. §2251 supports the Ninth Circuit’s decision. But §2251 merely provides district courts with the statutory authority to stay state-court proceedings pending the resolution of federal habeas proceedings. Section 2251 says nothing about whether a habeas petitioner is entitled to a stay of the district court’s proceedings pending his return to competence. 11 The Sixth Circuit made much of the fact that Rees I cited 18 U. S. C. §§4244–4245, the predecessors of §4241. But that citation provides no support for a statutory right to competence. In Rees I,as part of our direction to the District Court, we said that it would“be appropriate for the District Court to subject Rees to psychiatric and other appropriate medical examinations and, so far as necessary, to temporary federal hospitalization for this purpose. Cf. 18 U. S. C. §§4244–4245 (1964 ed.).” 384 U. S., at 314. The citation to §§4244–4245 did nothing more than point the District Court to those sections of the Criminal Code that set forth the proper procedures for conducting a competency hearing. There would have been little point in this Court’s directing the District Court to reinvent the wheel when §4244 already provided a rubric for conducting such a hearing. 12 Section 4241(d) provides, in relevant part: “If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental dis-ease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense, the court shall commit the defendant to the custody of the Attorney General.” (Emphasis added.) 13 This argument is especially curious coming from Gonzales, because the District Court denied his request for a stay. For Gonzales to prevail on his “equitable discretion” theory, Tr. of Oral Arg. in No. 10–930, p. 33, we would have to conclude that the District Court abused its discretion in denying the stay. But Gonzales has not argued that the District Court abused its discretion by denying his stay motion. Gon-zales’ arguments, thus, have little to do with the facts of his case. 14 Gonzales alleges that the trial judge refused to recuse himself; that he was prejudiced by the presence of the victim’s wife in the courtroom during jury selection and following her testimony; that the wife’s in-court identification was tainted; that there was insufficient evidence to support two aggravating factors found by the judge; and that Arizona’s statutory death penalty scheme unconstitutionally precludes the sen-tencer from considering all mitigating evidence. 15 Claim one alleges that Carter was incompetent to stand trial and was unlawfully removed from the trial proceedings. Claims two, five, and six are ineffective-assistance-of-counsel claims. 16 The fourth claim alleges ineffective assistance of appellate counsel for not raising trial counsel’s failure to pursue the competency-at-trial issue. It is unclear from the record whether Carter presented this claim to the Ohio Court of Appeals on state postconviction review, and there is no mention of this claim in that court’s opinion. In the District Court, the State argued that certain claims were procedurally de-faulted, see Carter v. Bradshaw, 583 F. Supp. 2d 872, 880 (ND Ohio 2008), but the court deferred ruling on this argument. The State was likely referring to claim four. We, therefore, leave the resolution of this claim to the District Court on remand. 17 In Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 14, n. 10), we did “not decide where to draw the line between new claims and claims adjudicated on the merits.” 18 Our opinion today does not implicate the prohibition against “ ‘carrying out a sentence of death upon a prisoner who is insane.’ ” Panetti v. Quarterman, 551 U.S. 930, 934 (2007) (quoting Ford v. Wainwright, 477 U.S. 399, 409–410 (1986)).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus RYAN, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS v. VALENCIA GONZALES certiorari to the united states court of appeals for the ninth circuit No. 10–930. Argued October 9, 2012—Decided January 8, 2013[1] Respondent Valencia Gonzales, a death row inmate in Arizona, sought federal habeas relief. His counsel moved to stay the proceedings, contending that Gonzales’ mental incompetence prevented him from rationally communicating with or assisting counsel, and that Gonzales was thus entitled to a stay because, under the Ninth Circuit’s Rohan decision, what is now 18 U. S. C. §3599(a)(2) requires a stay when a petitioner is adjudged incompetent. The District Court denied a stay, finding that the claims before it were record based or resolvable as a matter of law and thus would not benefit from Gonzales’ input. Gonzales thereafter sought a writ of mandamus in the Ninth Circuit. Applying Rohan and its recent decision in Nash—which gave habeas petitioners a right to competence even on record-based appeals—the court granted the writ, concluding that §3599 gave Gonzales the right to a stay pending a competency determination. Respondent Sean Carter, a death row inmate in Ohio, initiated federal habeas proceedings but eventually moved for a competency determination and stay of the proceedings. The District Court granted the motion and found Carter incompetent to assist counsel. Applying the Ninth Circuit’s Rohan test, it determined that Carter’s assistance was required to develop four of his exhausted claims. It thus dismissed his habeas petition without prejudice and prospectively tolled the statute of limitations. On appeal, the Sixth Circuit, relying in part on Rees v. Peyton, 384 U.S. 312 (Rees I), located a statutory right to competence in 18 U. S. C. §4241, and found that a court could employ that provision whenever a capital habeas petitioner seeks to forgo his petition. It thus ordered that Carter’s petition be stayed indefinitely with respect to any claims requiring his assistance. Held: 1. Section 3599 does not provide a state prisoner a right to suspension of his federal habeas proceedings when he is adjudged incompetent. . (a) The assertion of such a right lacks any basis in the provision’s text. Section 3599 guarantees federal habeas petitioners on death row the right to federally funded counsel, §3599(a)(2), and sets out various requirements that appointed counsel must meet, §§3599(b)–(e), but it does not direct district courts to stay proceedings when petitioners are found incompetent. The assertion is also difficult to square with the Court’s constitutional precedents. If the Sixth Amendment right carried with it an implied right to competence, the right to competence at trial would flow from that Amendment, not from the right to due process, see Cooper v. Oklahoma, 517 U.S. 348, 354. But while the benefits flowing from the right to counsel at trial could be affected if an incompetent defendant is unable to communicate with his attorney, this Court has never said that the right to competence derives from the right to counsel. And the Court will not assume or infer that Congress intended to depart from such precedent and locate a right to competence in federal habeas proceedings within the right to counsel. See Merck & Co. v. Reynolds, 559 U. S. ___, ___. . (b) The Ninth Circuit identified its rule in Rohan, concluding there that a petitioner’s mental incompetency could “eviscerate the statutory right to counsel” in federal habeas proceedings. But given the backward-looking, record-based nature of §2254 proceedings, counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner’s competence. Rees I, supra, Rees v. Peyton, 386 U.S. 989, and Rees v. Superintendent of the Va. State Penitentiary, 516 U. S 802, which involved an incompetent death row inmate’s attempt to withdraw his certiorari petition, offer no support for federal habeas petitioners seeking to stay district court proceedings or for the Ninth Circuit’s opinions in Rohan, Nash, or this case. The Ninth Circuit’s interpretation is also not supported by McFarland v. Scott, 512 U.S. 849, 858, in which this Court held that a district court could stay an execution after a capital prisoner had invoked his right to counsel but before he had filed his habeas petition. In contrast, Gonzales is seeking to stay the District Court’s proceedings, and he sought a stay more than six years after initiating his habeas petition, certainly ample time for his attorney to research and present the claims. . 2. Section 4241 also does not provide a statutory right to competence during federal habeas proceedings. The Sixth Circuit based its conclusion largely on a misreading of Rees I, which did not recognize such a right. Moreover, §4241 does not even apply to habeas proceedings. By its terms, it applies only to trial proceedings prior to sentencing and “at any time after the commencement of probation or supervised release.” Federal habeas proceedings, however, commence after sentencing, and federal habeas petitioners are incarcerated, not on probation. Furthermore, §4241, like the rest of Title 18 generally, applies exclusively to federal defendants, not to state prisoners like Carter. Finally, §4241(a) authorizes a district court to grant a motion for a competency determination if there is reasonable cause to believe that the defendant’s mental incompetence renders him “unable to understand . . . the proceedings against him or to assist properly in his defense,” while a §2254 habeas proceeding is a civil action against a state-prison warden, in which the petitioner collaterally attacks his conviction in an earlier state trial. . 3. For purposes of resolving these cases, it is sufficient to address the outer limits of the district court’s discretion to issue stays; it is unnecessary to determine the precise contours of that discretion. In Gonzales’ case, the District Court did not abuse its discretion in denying a stay after finding that Gonzales’ claims were all record based or resolvable as a matter of law, regardless of his competence. Review of a petitioner’s record-based claims subject to §2254(d) is limited to the record before the state court that heard the case on the merits. Any evidence that Gonzales might have would be inadmissible. In Carter’s case, three of his claims do not warrant a stay because they were adjudicated on the merits in state postconviction proceedings and thus subject to review under §2254(d). Thus, extrarecord evidence that he might have concerning these claims would be inadmissible. It is unclear from the record whether he exhausted his fourth claim. If it was exhausted, it too would be record based. But even if it was both unexhausted and not procedurally defaulted, an indefinite stay would be inappropriate, since such a stay would permit petitioners to “frustrate [the Antiterrorism and Effective Death Penalty Act of 1996’s] goal of finality by dragging out indefinitely their federal habeas review.” Rhines v. Weber, 544 U.S. 269, 277–278. . 623 F.3d 1242, No. 10–930, reversed; 644 F.3d 329, No. 11–218, reversed and remanded. Thomas, J., delivered the opinion for a unanimous Court. Notes 1 Together with No. 11–218, Tibbals, Warden v. Carter, on certiorari to the United States Court of Appeals for the Sixth Circuit.

After exhausting state remedies, respondent Gonzales was convicted in an Arizona state court of felony murder, armed robbery, aggravated assault, first-degree burglary, and theft. He then filed a petition for a writ of habeas corpus in Federal District Court, contending that he was no longer capable of rationally communicating with or assisting counsel. He argued that mental incompetence entitled him to a stay of the proceedings under Rohan v. Woodford, 334 F.3d 803, which held that a federal statute guaranteeing state capital prisoners a right to counsel in federal habeaas proceedings could not be faithfully enforced unless courts ensured that a petitioner was competent. The District Court denied a stay after concluding that the claims properly before it were record based or resolvable as a matter of law, and thus would not benefit from Gonzales input. Gonzales then filed an emergency petition for mandamus in the Ninth Circuit, which granted the writ. While Gonzales' petition was pending, the Court of Appeals decided Nash v. Ryan, 581 F. 3d 1048, which, in turn, affirmed the District Court. Held: Neither 18 U.S. C. §3599 (a)(2) nor §4241 provides a statutory right to competence. . (a) Section 3599 does not provide a right of competence on appeal, even though appeals are entirely record based. Rees I concerned whether an incompetent state prisoner may withdraw his certiorari petition, and it provides no clear answer to that question. Moreover, the unique, one-sentence order in Rees II offered no rationale for the decision to hold the petition for review under §2254(d), which authorizes district courts to authorize funding for such services as are "reasonably necessary for the representation of the defendant." The court relied on a Ninth Circuit en banc opinion in Calderon v. United States Dist. Court for Central Dist. of Cal., 163 F. 3d 530 (Kelly V), which purported to be bound by Kelly V, which purported that a prisoner's incompetence could eviscerate the statutory right of counsel, and concluded that a district court may stay a capital prisoner's execution once the prisoner has invoked his statutory right. However, since Gonzales is not a federal defendant, but rather is a state prisoner challenging the basis of his conviction in a federal civil action, any extrarecord evidence that he might have concerning these claims would therefore be inadmissible. Furthermore, the propriety of equitably tolling AEDPA's statute of limitations in the case of a men-tally incompetent petitioner does not have anything to do with the statutory rights to counsel. Pp. 475. (b) Nor is there any merit to Gonzales arguing that district courts have the equitable power to stay proceedings when they determine that habeasers petitioners are mentally incompetent. It is unclear from the record whether Gonzales exhausted the fourth claim, which was adjudicated on the merits in state postconviction proceedings, or whether he could show that the claim was both unexhausted and not procedurally defaulted, and an indefinite stay would be inappropriate.. 723 F.2d 1242, reversed and remanded. REHNQUIST, C.J., and WHITE, BLACKMUN, POWELL, and STEVENS, JJ., concurred in the judgment.

2012_12-246

https://www.oyez.org/cases/2012/12-246

in which The Chief Justice and Justice Kennedy join. Without being placed in custody or receiving Miranda warnings, petitioner voluntarily answered the questions of a police officer who was investigating a murder. But petitioner balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match petitioner’s shotgun. Petitioner was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer’s question suggested that he was guilty. Petitioner claims that this argument violated the Fifth Amendment, which guarantees that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self-executing” and that a witness who desires its protection “ ‘must claim it.’ ” Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 U. S. 424, 427 (1943)). Although “no ritualistic formula is necessary in order to invoke the privilege,” Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed. I On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning. Petitioner’s interview with the police lasted approximately one hour. All agree that the interview was noncustodial, and the parties litigated this case on the assumption that he was not read Miranda warnings. See Mi- randa v. Arizona, 384 U. S. 436 (1966). For most of the interview, petitioner answered the officer’s questions. But when asked whether his shotgun “would match the shells recovered at the scene of the murder,” App. 17, petitioner declined to answer. Instead, petitioner “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” Id., at 18. After a few moments of silence, the officer asked additional questions, which petitioner answered. Ibid. Following the interview, police arrested petitioner on outstanding traffic warrants. Prosecutors soon concluded that there was insufficient evidence to charge him with the murders, and he was released. A few days later, police obtained a statement from a man who said he had heard petitioner confess to the killings. On the strength of that additional evidence, prosecutors decided to charge peti- tioner, but by this time he had absconded. In 2007, police discovered petitioner living in the Houston area under an assumed name. Petitioner did not testify at trial. Over his objection, prosecutors used his reaction to the officer’s question dur- ing the 1993 interview as evidence of his guilt. The jury found petitioner guilty, and he received a 20-year sentence. On direct appeal to the Court of Appeals of Texas, petitioner argued that prosecutors’ use of his silence as part of their case in chief violated the Fifth Amendment. The Court of Appeals rejected that argument, reasoning that petitioner’s prearrest, pre-Miranda silence was not “compelled” within the meaning of the Fifth Amendment. 368 S. W. 3d 550, 557–559 (2011). The Texas Court of Criminal Appeals took up this case and affirmed on the same ground. 369 S. W. 3d 176 (2012). We granted certiorari, 568 U. S. ___ (2013), to resolve a division of authority in the lower courts over whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. Compare, e.g., United States v. Rivera, 944 F. 2d 1563, 1568 (CA11 1991), with United States v. Moore, 104 F. 3d 377, 386 (CADC 1997). But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question. II A The privilege against self-incrimination “is an exception to the general principle that the Government has the right to everyone’s testimony.” Garner v. United States, 424 U. S. 648, 658, n. 11 (1976). To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it. Murphy, 465 U. S., at 427 (quoting Monia, 317 U. S., at 427). See also United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113 (1927). That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U. S. 441, 448 (1972). The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness’ reasons for refusing to answer. See Roberts v. United States, 445 U. S. 552, 560, n. 7 (1980) (“A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give”); Hutcheson v. United States, 369 U. S. 599, 610–611 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege “assures that the Government obtains all the information to which it is entitled.” Garner, supra, at 658, n. 11. We have previously recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here. First, we held in Griffin v. California, 380 U. S. 609, 613–615 (1965), that a criminal defendant need not take the stand and assert the privilege at his own trial. That exception reflects the fact that a criminal defendant has an “absolute right not to testify.” Turner v. United States, 396 U. S. 398, 433 (1970) (Black, J., dissenting); see United States v. Patane, 542 U. S. 630, 637 (2004) (plurality opinion). Since a defendant’s reasons for remaining silent at trial are irrelevant to his constitutional right to do so, requiring that he expressly invoke the privilege would serve no purpose; neither a showing that his testimony would not be self-incriminating nor a grant of immunity could force him to speak. Because pe- titioner had no comparable unqualified right during his interview with police, his silence falls outside the Griffin exception. Second, we have held that a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation need not invoke the privilege. 384 U. S., at 467–468, and n. 37. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege “unless [he] fails to claim [it] after being suitably warned.” Murphy, supra, at 429–430. For similar reasons, we have held that threats to withdraw a governmental benefit such as public employment sometimes make exercise of the privilege so costly that it need not be affirmatively asserted. Garrity v. New Jersey, 385 U.S. 493, 497 (1967) (public employment). See also Lefkowitz v. Cunningham, 431 U.S. 801, 802–804 (1977) (public office); Lefkowitz v. Turley, 414 U. S. 70, 84–85 (1973) (public contracts). And where assertion of the privilege would itself tend to incriminate, we have allowed witnesses to exercise the privilege through silence. See, e.g., Leary v. United States, 395 U. S. 6, 28–29 (1969) (no requirement that taxpayer complete tax form where doing so would have revealed income from illegal activities); Albertson v. Subversive Activities Control Bd., 382 U. S. 70, 77–79 (1965) (members of the Communist Party not required to complete registration form “where response to any of the form’s questions . . . might involve [them] in the admission of a crucial element of a crime”). The principle that unites all of those cases is that a witness need not expressly invoke the privilege where some form of official compulsion denies him “a ‘free choice to admit, to deny, or to refuse to answer.’ ” Garner, 424 U. S., at 656–657 (quoting Lisenba v. California, 314 U. S. 219, 241 (1941)). Petitioner cannot benefit from that principle because it is undisputed that his interview with police was voluntary. As petitioner himself acknowledges, he agreed to accompany the officers to the station and “was free to leave at any time during the interview.” Brief for Petitioner 2–3 (internal quotation marks omitted). That places petitioner’s situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from voluntarily invoking the privilege. The dissent elides this point when it cites our precedents in this area for the proposition that “[c]ircumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment.” Post, at 7–8 (opinion of Breyer, J.). The critical question is whether, under the “circumstances” of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not. We have before us no allegation that petitioner’s failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment. B Petitioner urges us to adopt a third exception to the in- vocation requirement for cases in which a witness stands mute and thereby declines to give an answer that of- ficials suspect would be incriminating. Our cases all but foreclose such an exception, which would needlessly burden the Government’s interests in obtaining testimony and prosecuting criminal activity. We therefore decline petitioner’s invitation to craft a new exception to the “general rule” that a witness must assert the privilege to subsequently benefit from it. Murphy, 465 U. S., at 429. Our cases establish that a defendant normally does not invoke the privilege by remaining silent. In Roberts v. United States, 445 U. S. 552, for example, we rejected the Fifth Amendment claim of a defendant who remained silent throughout a police investigation and received a harsher sentence for his failure to cooperate. In so ruling, we explained that “if [the defendant] believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have determined whether his claim was legitimate.” Id., at 560. See also United States v. Sullivan, 274 U. S. 259, 263–264 (1927); Vajtauer, 273 U. S., at 113.[1] A witness does not expressly invoke the privilege by standing mute. We have also repeatedly held that the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incrim- inate the witness. Thus, in Murphy we held that the defendant’s self-incriminating answers to his probation of- ficer were properly admitted at trial because he failed to invoke the privilege. 465 U. S., at 427–428. In reaching that conclusion, we rejected the notion “that a witness must ‘put the Government on notice by formally availing himself of the privilege’ only when he alone ‘is reasonably aware of the incriminating tendency of the questions.’ ” Id., at 428 (quoting Roberts, supra, at 562, n.* (Brennan, J., concurring)). See also United States v. Kordel, 397 U. S. 1, 7 (1970).[2] Petitioner does not dispute the vitality of either of those lines of precedent but instead argues that we should adopt an exception for cases at their intersection. Thus, petitioner would have us hold that although neither a wit- ness’ silence nor official suspicions are enough to excuse the express invocation requirement, the invocation requirement does not apply where a witness is silent in the face of official suspicions. For the same reasons that neither of those factors is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, we conclude that they do not do so together. A contrary result would do little to protect those genuinely relying on the Fifth Amendment privilege while placing a needless new burden on society’s interest in the admission of evidence that is probative of a criminal defendant’s guilt. Petitioner’s proposed exception would also be very difficult to reconcile with Berghuis v. Thompkins, 560 U. S. 370 (2010). There, we held in the closely related context of post-Miranda silence that a defendant failed to invoke the privilege when he refused to respond to police questioning for 2 hours and 45 minutes. 560 U. S., at ___ (slip op., at 3, 8–10). If the extended custodial silence in that case did not invoke the privilege, then surely the momentary silence in this case did not do so either. Petitioner and the dissent attempt to distinguish Berg- huis by observing that it did not concern the admissi- bility of the defendant’s silence but instead involved the admissibility of his subsequent statements. Post, at 8–9 (opinion of Breyer, J.). But regardless of whether prosecutors seek to use silence or a confession that follows, the logic of Berghuis applies with equal force: A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege.[3] In support of their proposed exception to the invocation requirement, petitioner and the dissent argue that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case such as this one. Reply Brief 17; see post, at 9–10 (Breyer, J., dissenting). But whatever the most probable explanation, such silence is “insolubly ambiguous.” See Doyle, v. Ohio, 426 U. S. 610, 617 (1976). To be sure, someone might decline to answer a police officer’s question in reliance on his constitutional privilege. But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner alone knew why he did not answer the officer’s question, and it was therefore his “burden . . . to make a timely assertion of the privilege.” Garner, 424 U. S., at 655. At oral argument, counsel for petitioner suggested that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his “right to remain silent.” Tr. of Oral Arg. 26–27; see post, at 10 (Breyer, J., dissenting); Michigan v. Tucker, 417 U. S. 433, 439 (1974) (observing that “virtually every schoolboy is familiar with the concept, if not the language” of the Fifth Amendment). But popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself”; it does not establish an unqualified “right to remain silent.” A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim. See Hoffman, 341 U. S., at 486–487.[4] In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing. Murphy, 465 U. S., at 427–428; Garner, supra, at 654, n. 9. Statements against interest are regularly admitted into evidence at criminal trials, see Fed. Rule of Evid. 804(b)(3), and there is no good reason to approach a defendant’s silence any differently. C Finally, we are not persuaded by petitioner’s arguments that applying the usual express invocation requirement where a witness is silent during a noncustodial police interview will prove unworkable in practice. Petitioner and the dissent suggest that our approach will “unleash complicated and persistent litigation” over what a suspect must say to invoke the privilege, Reply Brief 18; see post, at 11–12 (opinion of Breyer, J.), but our cases have long required that a witness assert the privilege to subsequently benefit from it. That rule has not proved difficult to apply. Nor did the potential for close cases dissuade us from adopting similar invocation requirements for suspects who wish to assert their rights and cut off police questioning during custodial interviews. Berghuis, 560 U. S., at ___ (slip op., at 8–10) (requiring suspect to unambiguously assert privilege against self-incrimination to cut off custodial questioning); Davis v. United States, 512 U. S. 452, 459 (1994) (same standard for assertions of the right to counsel). Notably, petitioner’s approach would produce its own line-drawing problems, as this case vividly illustrates. When the interviewing officer asked petitioner if his shotgun would match the shell casings found at the crime scene, petitioner did not merely remain silent; he made movements that suggested surprise and anxiety. At precisely what point such reactions transform “silence” into expressive conduct would be a difficult and recurring question that our decision allows us to avoid. We also reject petitioner’s argument that an express invocation requirement will encourage police officers to “ ‘unfairly “tric[k]” ’ ” suspects into cooperating. Reply Brief 21 (quoting South Dakota v. Neville, 459 U. S. 553, 566 (1983)). Petitioner worries that officers could unduly pressure suspects into talking by telling them that their silence could be used in a future prosecution. But as petitioner himself concedes, police officers “have done nothing wrong” when they “accurately stat[e] the law.” Brief for Petitioner 32. We found no constitutional infirmity in government officials telling the defendant in Murphy that he was required to speak truthfully to his parole officer, 465 U. S., at 436–438, and we see no greater danger in the interview tactics petitioner identifies. So long as police do not deprive a witness of the ability to voluntarily invoke the privilege, there is no Fifth Amendment violation. * * * Before petitioner could rely on the privilege against self-incrimination, he was required to invoke it. Because he failed to do so, the judgment of the Texas Court of Criminal Appeals is affirmed. It is so ordered. Notes 1 The dissent argues that in these cases “neither the nature of the questions nor the circumstances of the refusal to answer them provided any basis to infer a tie between the silence and the Fifth Amendment.” Post, at 5–6 (opinion of Breyer, J.). But none of our precedents suggests that governmental officials are obliged to guess at the meaning of a witness’ unexplained silence when implicit reliance on the Fifth Amendment seems probable. Roberts does not say as much, despite its holding that the defendant in that case was required to explain the Fifth Amendment basis for his failure to cooperate with an investigation that led to his prosecution. 445 U. S., at 559. 2 Our cases do not support the distinction the dissent draws between silence and the failure to invoke the privilege before making incriminating statements. See post, at 7 (Breyer, J., dissenting). For example, Murphy, a case in which the witness made incriminating statements after failing to invoke the privilege, repeatedly relied on Robertsand Vajtauer—two cases in which witnesses remained silent and did not make incriminating statements. 465 U. S., at 427, 429, 455–456, n. 20. Similarly, Kordel cited Vajtauer, among other cases, for the proposition that the defendant’s “failure at any time to assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself.” 397 U. S., at 10, and n. 18. 3 Petitioner is correct that due process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings, Doyle v. Ohio, 426 U. S. 610, 617–618 (1976), but that rule does not apply where a suspect has not received the warnings’ implicit promise that any silence will not be used against him, Jenkins v. Anderson, 447 U. S. 231, 240 (1980). 4 The dissent suggests that officials in this case had no “special need to know whether the defendant sought to rely on the protections of the Fifth Amendment.” Post, at 4 (opinion of Breyer, J.). But we have never said that the government must demonstrate such a need on a case-by-case basis for the invocation requirement to apply. Any such rule would require judicial hypothesizing about the probable strategic choices of prosecutors, who often use immunity to compel testimony from witnesses who invoke the Fifth Amendment.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SALINAS v. TEXAS certiorari to the court of criminal appeals of texas No. 12–246. Argued April 17, 2013—Decided June 17, 2013 Petitioner, without being placed in custody or receiving Miranda warnings, voluntarily answered some of a police officer’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner’s murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the prosecution’s use of his silence in its case in chief violated the Fifth Amendment. Held: The judgment is affirmed. 369 S.W.3d 176, affirmed. Justice Alito, joined by The Chief Justice and Justice Kennedy, concluded that petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question. Pp. 3−12. (a) To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it. Minnesota v. Murphy, 465 U.S. 420, 427. This Court has recognized two exceptions to that requirement. First, a criminal defendant need not take the stand and assert the privilege at his own trial. Griffin v. California, 380 U.S. 609, 613–615. Petitioner’s silence falls outside this exception because he had no comparable unqualified right not to speak during his police interview. Second, a witness’ failure to invoke the privilege against self-incrimination must be excused where governmental coercion makes his forfeiture of the privilege involuntary. See, e.g., Miranda v. Arizona, 384 U.S. 436, 467−468, and n. 37. Petitioner cannot benefit from this principle because it is undisputed that he agreed to accompany the officers to the station and was free to leave at any time. Pp. 3−6. (b) Petitioner seeks a third exception to the express invocation requirement for cases where the witness chooses to stand mute rather than give an answer that officials suspect would be incriminating, but this Court’s cases all but foreclose that argument. A defendant normally does not invoke the privilege by remaining silent. See Roberts v. United States, 445 U.S. 552, 560. And the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness. See Murphy, supra, at 427−428. For the same reasons that neither a witness’ silence nor official suspicion is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, they do not do so together. The proposed exception also would be difficult to reconcile with Berghuis v. Thompkins, 560 U.S. 370, where this Court held in the closely related context of post-Miranda silence that a defendant failed to invoke his right to cut off police questioning when he remained silent for 2 hours and 45 minutes. Id., at ___. Petitioner claims that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case like his, but such silence is “insolubly ambiguous.” See Doyle v. Ohio, 426 U.S. 610, 617. To be sure, petitioner might have declined to answer the officer’s question in reliance on his constitutional privilege. But he also might have done so because he was trying to think of a good lie, because he was embarrassed, or because he was protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner also suggests that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his “right to remain silent.” But the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself,” not an unqualified “right to remain silent.” In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing. Murphy, 465 U. S., at 427–428. Pp. 6−10. (c) Petitioner’s argument that applying the express invocation requirement in this context will be unworkable is also unpersuasive. The Court has long required defendants to assert the privilege in order to subsequently benefit from it, and this rule has not proved difficult to apply in practice. Pp. 10−12. Justice Thomas, joined by Justice Scalia, concluded that petitioner’s claim would fail even if he invoked the privilege because the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony. Griffin v. California, 380 U.S. 609, in which this Court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant’s failure to testify, should not be extended to a defendant’s silence during a precustodial interview because Griffin “lacks foundation in the Constitution’s text, history, or logic.” See Mitchell v. United States, 526 U.S. 314, 341 (Thomas, J., dissenting). Pp. 1−2. Alito, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Kennedy, J., joined. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

Without being placed in custody or receiving Miranda warnings, petitioner voluntarily answered the questions of a police officer who was investigating a murder. But he balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match petitioner's shotgun. Petitioner was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer's question suggested that he was guilty. The Texas Court of Criminal Appeals affirmed, rejecting petitioner's argument that prosecutors' use of his silence as part of their case in chief violated the Fifth Amendment. Held: The privilege against self-incrimination is an exception to the general principle that the Government has the right to everyone's testimony, Garner v. United States, 424 U. S. 648, 658, n. 11. To prevent the privilege from shielding information not properly within its scope, a witness who desires its protection must claim it at the time he relies on it. Here, petitioner failed to do so, and the prosecution used his noncustodial silence to benefit from it.. (a) A witness who has an absolute right not to testify normally does not invoke the privilege by remaining silent. Griffin v. California, 380 U.S. 609, 613-615. The Fifth Amendment guarantees that no one may be compelled in any criminal case to be a witness against himself, and it does not establish an unqualified right to remain silent. Because pe- titioner had no comparable unqualified constitutional right during his interview with police, his silence falls outside the Griffin exception. Moreover, the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incrim- inate the witness. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege unless he alone is reasonably aware of the incriminating tendency of the questions. Similarly, threats to withdraw a governmental benefit such as public employment sometimes make exercise of the privilege so costly that it need not be affirmatively asserted. Thus, although petitioner and the dissent may have wished to adopt an exception for cases in which a witness stands mute and thereby declines to give an answer that of- ficials suspect would incriminate the witness, they do not have the same obligation to protect themselves from the same official suspicions that do not relieve a witness of the obligation to invoke a privilege. Berghuis v. Thompkins, supra, at 563. It would be very difficult to reconcile the two factors together, since it is undisputed that petitioner agreed to accompany the officers to the station and was free to leave at any time during the interview, and since it would have been a simple matter for him to say he was not answering the officer’s question on Fifth Amendment grounds. Furthermore, there is no allegation that his failure to assert the privilege was involuntary, since he failed to answer the officer. Cf. Griffin, supra. Pp. 456. (b) Petitioner cannot benefit from the principle that a witness need not expressly invoke the privilege where some form of official compulsion denies him a free choice to admit, to deny, or to refuse to answer, and that such silence is inolubly ambiguous. Although it may be difficult for a witness unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his privilege, petitioner alone knew why he did not answer the police officer question in reliance on his constitutional privilege; he alone knew the reasons for doing so; and it was therefore his burden to make a timely assertion of that privilege. Cf. Murphy. . 553 F.2d 557, affirmed. CERTIORARI TO THE SUPREME COURT OF CIRCUIT Petitioner urges the adoption of a third exception for the in- vocation requirement, which would needlessly burden the Government's interests in obtaining testimony and prosecuting criminal activity. He argues that such an exception would be unworkable in practice, since due process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings but does not apply where a suspect has not received the warnings' implicit promise that any silence will not be used against him, or since statements against interest are regularly admitted into evidence at criminal trials. However, he also argues that applying the usual express invocation requirement where a witness is silent during a noncusodial police interview will prove impractical in practice. Such an approach would require judicial hypothesizing about the probable strategic choices of prosecutors, who often use immunity to compel testimony from witnesses who invoke the Fifth Amendment. See, e.g., Brennan, J., at 656. In addition, he is not persuaded by his arguments that applying an express invocation rule will prove impossible in practice because such an approach will unleash complicated and persistent litigation over what a suspect

2012_11-1231

https://www.oyez.org/cases/2012/11-1231

. This case concerns the time within which health care providers may file an administrative appeal from the initial determination of the reimbursement due them for inpatient services rendered to Medicare beneficiaries. Government contractors, called fiscal intermediaries, receive cost reports annually from care providers and notify them of the reimbursement amount for which they qualify. A provider dissatisfied with the fiscal intermediary’s determination may appeal to an administrative body named the Provider Reimbursement Review Board (PRRB or Board). The governing statute, §602(h)(l)(D), 97Stat. 165, 42 U. S. C. §1395oo(a)(3), sets a 180-day limit for filing appeals from the fiscal intermediary to the PRRB. By a regulation promulgated in 1974, the Secretary of the Department of Health and Human Services (HHS) authorized the Board to extend the 180-day limitation, for good cause, up to three years.[1] The providers in this case are hospitals who appealed to the PRRB more than ten years after expiration of the 180-day statutory deadline. They assert that the Secretary’s failure to disclose information that made the fiscal intermediary’s reimbursement calculation incorrect prevented them from earlier appealing to the Board. Three positions have been briefed and argued regarding the time for providers’ appeals to the PRRB. First, a Court-appointed amicus curiae has urged that the 180-day limitation is “jurisdictional,” and therefore cannot be enlarged at all by agency or court. Second, the Government maintains that the Secretary has the prerogative to set an outer limit of three years for appeals to the Board. And third, the hos- pitals argue that the doctrine of equitable tolling applies, stopping the 180-day clock during the time the Secretary concealed the information that made the fiscal interme- diary’s reimbursement determinations incorrect. We hold that the statutory 180-day limitation is not “jurisdictional,” and that the Secretary reasonably construed the statute to permit a regulation extending the time for a provider’s appeal to the PRRB to three years. We further hold that the presumption in favor of equitable tolling does not apply to administrative appeals of the kind here at issue. I The Medicare program covers certain inpatient services that hospitals provide to Medicare beneficiaries. Providers are reimbursed at a fixed amount per patient, regardless of the actual operating costs they incur in rendering these services. But the total reimbursement amount is adjusted upward for hospitals that serve a disproportionate share of low-income patients. This adjustment is made because hospitals with an unusually high percentage of low-income patients generally have higher per-patient costs; such hospitals, Congress therefore found, should receive higher reimbursement rates. See H. R. Rep. No. 99–241, pt. 1, p. 16 (1985). The amount of the disproportionate share adjustment is determined in part by the percentage of the patients served by the hospital who are eligible for Supplemental Security Income (SSI) payments, a percentage commonly called the SSI fraction. 42 U. S. C. §1395ww(d) (2006 ed. and Supp. V). At the end of each year, providers participating in Medicare submit cost reports to contractors acting on behalf of HHS known as fiscal intermediaries. Also at year end, the Centers for Medicare & Medicaid Services (CMS) cal- culates the SSI fraction for each eligible hospital and submits that number to the intermediary for that hospital. Using these numbers to determine the total payment due, the intermediary issues a Notice of Program Reimbursement (NPR) informing the provider how much it will be paid for the year. If a provider is dissatisfied with the intermediary’s re- imbursement determination, the statute gives it the right to file a request for a hearing before the PRRB within 180 days of receiving the NPR. §1395oo(a)(3) (2006 ed.) In 1974, the Secretary promulgated a regulation, after notice and comment rulemaking, permitting the Board to extend the 180-day time limit upon a showing of good cause; the regulation further provides that “no such extension shall be granted by the Board if such request is filed more than 3 years after the date the notice of the intermediary’s determination is mailed to the provider.” 39 Fed. Reg. 34517 (1974) (codified in 42 CFR §405.1841(b) (2007)).[2] For many years, CMS released only the results of its SSI fraction calculations and not the underlying data.[3] The Baystate Medical Center—a hospital not party to this case—timely appealed the calculation of its SSI fraction for each year from 1993 through 1996. Eventually, the PRRB determined that CMS had omitted several categories of SSI data from its calculations and was using a flawed process to determine the number of low-income beneficiaries treated by hospitals. These errors caused a systematic undercalculation of the disproportionate share adjustment, resulting in underpayments to the providers. Baystate Medical Center v. Leavitt, 545 F. Supp. 2d 20, 26–30 (DC 2008); see id., at 57–58 (concluding that CMS failed to use “the best available data”). The methodological errors revealed by the Board’s Bay- state decision would have yielded similarly reduced payments to all providers for which CMS had calculated an SSI fraction. In March 2006, the Board’s decision in the Baystate case was made public. Within 180 days, the hospitals in this case filed a complaint with the Board seeking to challenge their disproportionate share adjustments for the years 1987 through 1994. The hospitals acknowledged that their challenges, unlike Baystate’s timely contest, were more than a decade out of time. But equitable tolling of the limitations period was in order, they urged, due to CMS’s failure to inform the hospitals that their SSI fractions had been based on faulty data. The PRRB held that it lacked jurisdiction over the hospitals’ complaint, reasoning that it had no equitable powers save those legislation or regulation might confer, and that the Secretary’s regulation permitted it to excuse late appeals only for good cause, with three years as the outer limit. On judicial review, the District Court dismissed the hospitals’ claims for relief, holding that nothing in the statute suggests that “Congress intended to authorize equitable tolling.” 686 F. Supp. 2d 55, 70 (DC 2010). The Court of Appeals reversed. 642 F.3d 1145 (CADC 2011). It relied on the presumption that statutory limitations periods are generally subject to equitable tolling and reasoned that “ ‘the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.’ ” Id., at 1148 (quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95–96 (1990)). The presumption applies to the 180-day time limit for provider appeals from re- imbursement determinations, the Court of Appeals held, finding nothing in the statutory provision for PRRB review indicating that Congress intended to disallow equi- table tolling. 642 F. 3d, at 1149–1151. We granted the Secretary’s petition for certiorari, 567 U. S. ___ (2012), to resolve a conflict among the Courts of Appeals over whether the 180-day time limit in 42 U. S. C. §1395oo(a)(3) constricts the Board’s jurisdiction. Compare 642 F.3d 1145 (case below); Western Medical Enterprises, Inc. v. Heckler, 783 F.2d 1376, 1379–1380 (CA9 1986) (180-day limit is not jurisdictional and the Secretary may extend it for good cause), with Alacare Home Health Servs., Inc. v. Sullivan, 891 F.2d 850, 855–856 (CA11 1990) (statute of limitations is jurisdictional and the Secretary lacked authority to promulgate good-cause exception); St. Joseph’s Hospital of Kansas City v. Heckler, 786 F.2d 848, 852–853 (CA8 1986) (same). Beyond the jurisdictional inquiry,[4] the Secretary asked us to determine whether the Court of Appeals erred in concluding that equitable tolling applies to providers’ Medicare reimbursement appeals to the PRRB, notwithstanding the Secretary’s regulation barring such appeals after three years. II A Characterizing a rule as jurisdictional renders it unique in our adversarial system. Objections to a tribunal’s ju- risdiction can be raised at any time, even by a party that once conceded the tribunal’s subject-matter jurisdiction over the controversy. Tardy jurisdictional objections can therefore result in a waste of adjudicatory resources and can disturbingly disarm litigants. See Henderson v. Shinseki, 562 U. S. ___, ___ (2011) (slip op., at 5); Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). With these untoward consequences in mind, “we have tried in recent cases to bring some discipline to the use” of the term “jurisdiction.” Henderson, 562 U. S., at ___ (slip op., at 5); see also Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 90 (1998) (jurisdiction has been a “word of many, too many, meanings” (internal quotation marks omitted)). To ward off profligate use of the term “jurisdiction,” we have adopted a “readily administrable bright line” for determining whether to classify a statutory limitation as jurisdictional. Arbaugh, 546 U. S., at 516. We inquire whether Congress has “clearly state[d]” that the rule is jurisdictional; absent such a clear statement, we have cautioned, “courts should treat the restriction as nonjurisdictional in character.” Id., at 515–516; see also Gonzalez v. Thaler, 565 U. S. ___, ___ (2012) (slip op., at 6); Henderson, 562 U. S., at ___ (slip op., at 6). This is not to say that Congress must incant magic words in order to speak clearly. We consider “context, including this Court’s inter- pretations of similar provisions in many years past,” as probative of whether Congress intended a particular provision to rank as jurisdictional. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168 (2010); see also John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133–134 (2008). We reiterate what it would mean were we to type the gov- erning statute, 42 U. S. C. §1395oo(a)(3), “jurisdictional.” Under no circumstance could providers engage PRRB re- view more than 180 days after notice of the fiscal inter- mediary’s final determination. Not only could there be no equitable tolling. The Secretary’s regulation providing for a good-cause extension, see supra, at 3, would fall as well. The language Congress used hardly reveals a design to preclude any regulatory extension. Section 1395oo(a)(3) instructs that a provider of services “may obtain a hearing” by the Board regarding its reimbursement amount if “such provider files a request for a hearing within 180 days after notice of the intermediary’s final determination.” This provision “does not speak in jurisdictional terms.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). Indeed, it is less “jurisdictional” in tone than the provision we held to be nonjurisdictional in Henderson. There, the statute provided that a veteran seeking Veterans Court review of the Department of Veterans Affairs’ determination of disability benefits “shall file a notice of appeal . . . within 120 days.” 562 U. S., at ___ (slip op., at 9) (quoting 38 U. S. C. §7266(a) (emphasis added)). Section 1395oo(a)(3), by contrast, contains neither the mandatory word “shall” nor the appellation “notice of appeal,” words with jurisdictional import in the context of 28 U. S. C. §2107’s limitations on the time for appeal from a district court to a court of appeals. See Bowles v. Russell, 551 U.S. 205, 214 (2007). Key to our decision, we have repeatedly held that filing deadlines ordinarily are not jurisdictional; indeed, we have described them as “quintessential claim-processing rules.” Henderson, 562 U. S., at ___ (slip op., at 6); see also Scarborough v. Principi, 541 U.S. 401, 414 (2004) (filing deadline for fee applications under Equal Access to Justice Act); Kontrick v. Ryan, 540 U.S. 443, 454 (2004) (filing deadlines for objecting to debtor’s discharge in bank- ruptcy); Honda v. Clark, 386 U.S. 484, 498 (1967) (filing deadline for claims under the Trading with the Enemy Act). This case is scarcely the exceptional one in which a “cen- tury’s worth of precedent and practice in American courts” rank a time limit as jurisdictional. Bowles, 551 U. S., at 209, n. 2; cf. Kontrick, 540 U. S., at 454 (a time limitation may be emphatic, yet not jurisdictional). B Amicus urges that the three requirements in §1395oo(a) are specifications that together define the limits of the PRRB’s jurisdiction. Subsection (a)(1) specifies the claims providers may bring to the Board, and subsection (a)(2) sets forth an amount-in-controversy requirement. These are jurisdictional requirements, amicus asserts, so we should read the third specification, subsection (a)(3)’s 180-day limitation, as also setting a jurisdictional requirement. Last Term, we rejected a similar proximity-based argument. A requirement we would otherwise classify as nonjurisdictional, we held, does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions. Gonzalez, 565 U. S., at ___ (slip op., at 11); see Weinberger v. Salfi, 422 U.S. 749, 763–764 (1975) (statutory provision at issue contained three requirements for judicial review, only one of which was jurisdictional). Amicus also argues that the 180-day time limit for pro- vider appeals to the PRRB should be viewed as jurisdictional because Congress could have expressly made the provision nonjurisdictional, and indeed did so for other time limits in the Medicare Act. Amicus notes particularly that when Medicare beneficiaries request the Secretary to reconsider a benefits determination, the statute gives them a time limit of 180 days or “such additional time as the Secretary may allow.” 42 U. S. C. §1395ff(b)(1)(D)(i); see also §1395ff(b)(1)(D)(ii) (permitting Medicare beneficiary to request a hearing by the Secretary within “time limits” the Secretary “shall establish in regulations”). We have recognized, as a general rule, that Congress’s use of “certain language in one part of the statute and different language in another” can indicate that “different meanings were intended.” Sosa v. Alvarez-Machain, 542 U.S. 692, 711, n. 9 (2004) (internal quotation marks omitted). Amicus notes this general rule in urging that an express grant of authority for the Secretary to extend the time for beneficiary appeals implies the absence of such leeway for provider appeals. But the interpretive guide just identified, like other canons of construction, is “no more than [a] rul[e] of thumb” that can tip the scales when a statute could be read in multiple ways. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253 (1992). For the reasons earlier stated, see supra, at 6–8, we are persuaded that the time limi- tation in §1395oo(a) is most sensibly characterized as a nonjurisdictional prescription. The limitation therefore does not bar the modest extension contained in the Secretary’s regulation. III We turn now to the question whether §1395oo(a)(3)’s 180-day time limit for a provider to appeal to the PRRB is subject to equitable tolling. A Congress vested in the Secretary large rulemaking authority to administer the Medicare program. The PRRB may adopt rules and procedures only if “not inconsistent” with the Medicare Act or “regulations of the Secretary.” 42 U. S. C. §1395oo(e). Concerning the 180-day period for an appeal to the Board from an intermediary’s reimbursement determination, the Secretary’s regulation im- plementing §1395oo, adopted after notice and comment, speaks in no uncertain terms: “A request for a Board hearing filed after [the 180-day time limit] shall be dismissed by the Board, except that for good cause shown, the time limit may be extended. However, no such extension shall be granted by the Board if such request is filed more than 3 years after the date the notice of the intermediary’s determination is mailed to the provider.” 42 CFR §405.1841(b) (2007). The Secretary allowed only a distinctly limited extension of time to appeal to the PRRB, cognizant that “the Board is burdened by an immense caseload,” and that “procedural rules requiring timely filings are indispens- able devices for keeping the machinery of the reimbursement appeals process running smoothly.” High Country Home Health, Inc. v. Thompson, 359 F.3d 1307, 1310 (CA10 2004). Imposing equitable tolling to permit appeals barred by the Secretary’s regulation would essentially gut the Secretary’s requirement that an appeal to the Board “shall be dismissed” if filed more than 180 days after the NPR, unless the provider shows “good cause” and requests an extension no later than three years after the NPR. A court lacks authority to undermine the regime established by the Secretary unless her regulation 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). The Secretary’s regulation, we are satisfied, survives inspection under that deferential standard. As HHS has explained, “[i]t is in the interest of providers and the pro- gram that, at some point, intermediary determinations and the resulting amount of program payment due the provider or the program become no longer open to correction.” CMS, Medicare: Provider Reimbursement Manual, pt. 1, ch. 29, §2930, p. 29–73 (rev. no. 372, 2011); cf. Taylor v. Freeland & Kronz, 503 U.S. 638, 644 (1992) (“Deadlines may lead to unwelcome results, but they prompt parties to act and produce finality.”). The Secretary brought to bear practical experience in superintending the huge pro- gram generally, and the PRRB in particular, in maintaining three years as the outer limit. A court must uphold the Secretary’s judgment as long as it is a permissible construction of the statute, even if it differs from how the court would have interpreted the statute in the absence of an agency regulation. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 980 (2005); see also Chevron, 467 U. S., at 843, n. 11. B Rejecting the Secretary’s position, the Court of Appeals relied principally on this Court’s decision in Irwin, 498 U. S., at 95–96. Irwin concerned the then 30-day time period for filing suit against a federal agency under Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e–16(c) (1988 ed.). We held in Irwin that “the same rebut- table presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” 498 U. S., at 95–96. Irwin itself, and equitable-tolling cases we have considered both pre- and post-Irwin, have generally involved time limits for filing suit in federal court. See, e.g., Holland v. Flor- ida, 560 U. S. ___ (2010) (one-year limitation for filing application for writ of habeas corpus); Rotella v. Wood, 528 U.S. 549 (2000) (four-year period for filing civil RICO suit); United States v. Beggerly, 524 U.S. 38 (1998) (12-year period to bring suit under Quiet Title Act); Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991) (one- and three-year periods for commencing civil action under §10(b) of the Securities Exchange Act of 1934); Honda v. Clark, 386 U.S. 484 (1967) (60-day period for filing suit under Trading with the Enemy Act); Kendall v. United States, 107 U.S. 123 (1883) (six-year period for filing suit in Court of Claims). Courts in those cases rendered in the first instance the decision whether equity required tolling. This case is of a different order. We have never applied the Irwin presumption to an agency’s internal appeal dead- line, here the time a provider has to appeal an inter- mediary’s reimbursement determination to the PRRB. Cf. United States v. Brockamp, 519 U.S. 347, 350 (1997) (assuming, arguendo, that Irwin presumption applied to time limit for filing an administrative claim for a tax re- fund, but concluding based on statutory text, structure, and purpose that there was “good reason to believe that Congress did not want the equitable tolling doctrine to apply”). The presumption of equitable tolling was adopted in part on the premise that “[s]uch a principle is likely to be a realistic assessment of legislative intent.” Irwin, 498 U. S., at 95. But that premise is inapt in the context of providers’ administrative appeals under the Medicare Act. The Act, until 1972, provided no avenue for providers to obtain administrative or judicial review. When Congress first directed the Secretary to establish the PRRB, Congress simultaneously imposed the 180-day deadline, with no statutory exceptions. For nearly 40 years the Secre- tary has prohibited the Board from extending that deadline, except as provided by regulation. And until the D. C. Circuit’s decision in this case, no court had ever read equitable tolling into §1395oo(a)(3) or the Secretary’s implementation of that provision. Congress amended §1395oo six times since 1974, each time leaving untouched the 180-day administrative appeal provision and the Secretary’s rulemaking authority. At no time did Congress express disapproval of the three-year outer time limit set by the Secretary for an extension upon a showing of good cause. See Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (“[W]hen Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one in- tended by Congress.” (internal quotation marks omitted)). We note, furthermore, that unlike the remedial statutes at issue in many of this Court’s equitable-tolling decisions, see Irwin, 498 U. S., at 91; Bowen v. City of New York, 476 U.S. 467, 480 (1986); Zipes, 455 U. S., at 398, the statu- tory scheme before us is not designed to be “ ‘unusually protective’ of claimants.” Bowen, 476 U. S., at 480. Nor is it one “in which laymen, unassisted by trained lawyers, initiate the process.” Zipes, 455 U. S., at 397 (internal quotation marks omitted). The Medicare payment system in question applies to “sophisticated” institutional pro- viders assisted by legal counsel, and “generally capable of identifying an underpayment in [their] own NPR within the 180-day time period specified in 42 U. S. C. §1395oo(a)(3).” Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U.S. 449, 456 (1999). As repeat players who elect to participate in the Medicare system, providers can hardly claim lack of notice of the Secretary’s regulations. The hospitals ultimately argue that the Secretary’s regulations fail to adhere to the “fundamentals of fair play.” FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143 (1940). They point, particularly, to 42 CFR §405.1885(b)(3) (2012), which permits reopening of an intermediary’s reimbursement determination “at any time if it is established that such determination . . . was procured by fraud or similar fault of any party to the determination.”[5] We considered a similar alleged inequity in Your Home and explained that it was justified by the “administrative realities” of the provider reimbursement appeal system. 525 U. S., at 455. There are only a few dozen fiscal intermediaries and they are charged with issuing tens of thousands of NPRs, while each provider can concentrate on a single NPR, its own. Id., at 456. The Secretary, Your Home concluded, could reasonably believe that this asymmetry justifies giving the intermediaries more time to discover overpayments than the providers have to discover underpayments. Moreover, the fraud exception allowing indefinite reopening does apply to an intermediary if it “procured” a Board decision by “fraud or similar fault.” Although an intermediary is not a party to its own determination, it does rank as a party in proceedings before the Board. 42 CFR §405.1843(a).[6] * * * We hold, in sum, that the 180-day statutory deadline for administrative appeals to the PRRB, contained in 42 U. S. C. §1395oo(a)(3), is not “jurisdictional.” Therefore the Secretary lawfully exercised her rulemaking authority in providing for a three-year “good cause” extension. We further hold that the equitable tolling presumption our Irwin decision approved for suits brought in court does not similarly apply to administrative appeals of the kind here considered, and that the Secretary’s regulation, 42 CFR §405.1841(b), is a permissible interpretation of the statute. The judgment of the United States Court of Appeals for the District of Columbia Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 The agency was called the Department of Health, Education, and Welfare until 1979, but for simplicity’s sake we refer to it as HHS throughout this opinion. 2 In 2008, after this case commenced, the Secretary replaced the 1974 regulation with a new prescription limiting “good cause” to “extraordinary circumstances beyond [the provider’s] control (such as a natural or other catastrophe, fire, or strike).” 73 Fed. Reg. 30250 (2008) (codified in 42 CFR §405.1836(b) (2012)). The new regulation retains the strict three-year cutoff for all claims. §405.1836(c)(2). The parties agree that this case is governed by the 1974 regulation, and our opinion today addresses only that regulation. 3 In §951 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, 117Stat. 2427, Congress required the Secretary to furnish hospitals with the data necessary to compute their own disproportionate share adjustment. Pursuant to this congressional mandate, the Secretary has adopted procedures for turning over the SSI data to hospitals upon request. 70 Fed. Reg. 47438 (2005). 4 Because no party takes the view that the statutory 180-day time limit is jurisdictional, we appointed John F. Manning to brief and argue this position as amicus curiae. 567 U. S. ___ (2012). Amicus Manning has ably discharged his assigned responsibilities and the Court thanks him for his well-stated arguments. 5 Because neither the Secretary nor the intermediary counts as a party to the intermediary’s determination, 42 CFR §405.1805, providers alone are subject to this exception to the time limitation. 6 The fraud exception apart, reopening time is limited to three years. §405.1885(a). Within that time, reopening may be sought by the intermediary, the Board, the Secretary, or the provider. Thus an intermediary determination or Board decision could not be reopened if, outside the three-year window, the Secretary discovered errors in calculating the SSI fraction that resulted in overpayments to providers.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES v. AUBURN REGIONAL MEDICAL CENTER et al. certiorari to the united states court of appeals for the district of columbia circuit No. 11–1231. Argued December 4, 2012—Decided January 22, 2013 The reimbursement amount health care providers receive for inpatient services rendered to Medicare beneficiaries is adjusted upward for hospitals that serve a disproportionate share of low-income patients. The adjustment amount is determined in part by the percentage of a hospital’s patients who are eligible for Supplemental Security Income (SSI), called the SSI fraction. Each year, the Centers for Medicare & Medicaid Services (CMS) calculates the SSI fraction for an eligible hospital and submits that number to the hospital’s “fiscal intermediary,” a Department of Health and Human Services (HHS) contractor. The intermediary computes the reimbursement amount due and then sends the hospital a Notice of Program Reimbursement (NPR). A provider dissatisfied with the determination has a right to appeal to the Provider Reimbursement Review Board (PRRB or Board) within 180 days of receiving the NPR. 42 U. S. C. §1395oo(a)(3). By regulation, the Secretary of HHS authorized the PRRB to extend the 180-day limit, for good cause, up to three years. See 42 CFR 405.1841(b) (2007). The Baystate Medical Center—not a party here—timely appealed its SSI fraction calculation for each year from 1993 through 1996. The PRRB found that errors in CMS’s methodology resulted in a systematic undercalculation of the disproportionate share adjustment and corresponding underpayments to providers. In March 2006, the Board’s Baystate decision was made public. Within 180 days, respondent hospitals filed a complaint with the Board, challenging their adjustments for 1987 through 1994. Acknowledging that their challenges were more than a decade out of time, they urged that equitable tolling of the limitations period was in order due to CMS’s failure to tell them about the computation error. The PRRB held that it lacked jurisdiction, reasoning that it had no equitable powers save those legislation or regulation might confer. On judicial review, the District Court dismissed the hospitals’ claims. The D. C. Circuit reversed. The presumption that statutory limitations periods are generally subject to equitable tolling, the court concluded, applied to the 180-day time limit because nothing in §1395oo(a)(3) indicated that Congress intended to disallow such tolling. Held: 1. The 180-day limitation in §1395oo(a)(3) is not “jurisdictional.” . (a) Unless Congress has “clearly state[d]” that a statutory limitation is jurisdictional, the restriction should be treated “as nonjurisdictional.” Arbaugh v. Y & H Corp., 546 U.S. 500, 515–516. “[C]ontext, including this Court’s interpretations of similar provisions in many years past,” is probative of whether Congress intended a particular provision to rank as jurisdictional. Reed Elsevier, Inc. v. Muchnick, 559 U. S. ___, ___. If §1395oo(a)(3) were jurisdictional, the 180-day time limit could not be enlarged by agency or court. Section 1395oo(a)(3) hardly reveals a design to preclude any regulatory extension. The provision instructs that a provider “may obtain a hearing” by filing “a request . . . within 180 days after notice of the intermediary’s final determination.” It “does not speak in jurisdictional terms.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394. This Court has repeatedly held that filing deadlines ordinarily are not jurisdictional; indeed, they have been described as “quintessential claim-processing rules.” Henderson v. Shinseki, 562 U. S. ___, ___. . (b) Court-appointed amicus urges that §1395oo(a)(3) should be classified as a jurisdictional requirement based on its proximity to §§1395oo(a)(1) and (a)(2), both jurisdictional requirements, amicus asserts. But a requirement that would otherwise be nonjurisdictional does not become jurisdictional simply because it is in a section of a statute that also contains jurisdictional provisions. Gonzalez v. Thaler, 565 U. S. ___, ___. Amicus also urges that the Medicare Act’s express grant of authority for the Secretary to extend the time for beneficiary appeals implies the absence of such leeway for §1395oo(a)(3)’s provider appeals. In support, amicus relies on the general rule that Congress’s use of “certain language in one part of the statute and different language in another” can indicate that “different meanings were intended,” Sosa v. Alvarez-Machain, 542 U.S. 692, 711, n. 9. But that interpretive guide, like other canons of construction, is “no more than [a] rul[e] of thumb” that can tip the scales when a statute could be read in multiple ways. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253. Here, §1395oo(a)’s limitation is most sensibly characterized as nonjurisdictional. . 2. The Secretary’s regulation is a permissible interpretation of §1395oo(a)(3). . (a) Congress vested in the Secretary large rulemaking authority to administer Medicare. A court lacks authority to undermine the Secretary’s regime unless her regulation 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. Here, the regulation survives inspection under that deferential standard. The Secretary brought to bear practical experience in superintending the huge program generally, and the PRRB in particular, in maintaining a three-year outer limit for intermediary determination challenges. A court must uphold her judgment as long as it is a permissible construction of the statute, even if the court would have interpreted the statute differently absent agency regulation. . (b) A presumption of equitable tolling generally applies to suits against the United States, Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95–96, but application of this presumption is not in order for §1395oo(a)(3). This Court has never applied Irwin’s presumption to an agency’s internal appeal deadline. The presumption was adopted in part on the premise that “[s]uch a principle is likely to be a realistic assessment of legislative intent.” Irwin, 498 U. S., at 95. That premise is inapt in the context of providers’ administrative appeals under the Medicare Act. For nearly 40 years the Secretary has prohibited the Board from extending the 180-day deadline, except as provided by regulation. In the six times §1395oo has been amended since 1974, Congress has left untouched the 180-day provision and the Secretary’s rulemaking authority. Furthermore, the statutory scheme, which applies to sophisticated institutional providers, is not designed to be “ ‘unusually protective’ of claimants.” Bowen v. City of New York, 476 U.S. 467, 480. Nor is the scheme one “in which laymen, unassisted by trained lawyers, initiate the process.” Zipes, 455 U. S., at 397. The hospitals ultimately argue that the Secretary’s regulations fail to adhere to “fundamentals of fair play.” FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143. They point to 42 CFR §405.1885(b)(3), which permits reopening of an intermediary’s reimbursement determination “at any time” if the determination was procured by fraud or fault of the provider. But this Court has explained that giving intermediaries more time to discover overpayments than providers have to discover underpayments may be justified by the “administrative realities” of the system: a few dozen fiscal intermediaries are charged with issuing tens of thousands of NPRs, while each provider can concentrate on a single NPR, its own. Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U.S. 449, 455, 456. . 642 F.3d 1145, reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion.

The Medicare program covers certain inpatient services that hospitals provide to Medicare beneficiaries. But the total reimbursement amount is adjusted upward for hospitals that serve a disproportionate share of low-income patients. The amount of the disproportionate share adjustment is determined in part by the percentage of the patients served by the hospital who are eligible for Supplemental Security Income (SSI) payments, a percentage commonly called the SSI fraction. At the end of each year, providers participating in Medicare submit cost reports to contractors acting on behalf of HHS known as fiscal intermediaries, and at year end, the Centers for Medicare & Medicaid Services (CMS) cal- culates the amount for each eligible hospital and submits that number to the intermediary for that hospital. If a provider is dissatisfied with the intermediary's re- imbursement determination, the statute gives the provider the right to file a request for a hearing before the PRRB within 180 days of receiving the NPR. In 1974, the Secretary of Health and Human Services (Secretary) promulgated a regulation permitting the Board to extend the 180-day limitation, for good cause, up to three years. A provider dissatisfied with a fiscal intermediary's determination may appeal to an administrative body named the Provider Reimbursement Review Board (PRRB). The PRRB held that it lacked jurisdiction over the hospitals, and that the Secretary had the prerogative to set an outer limit of three years for appeals to the Board. The Court of Appeals reversed, relying on the presumption that statutory limitations periods are generally subject to equitable tolling. Held: 1. Titleizing a rule as jurisdictional renders it unique in this adversarial system. Tardy jurisdictional objections can therefore result in a waste of adjudicatory resources and can disturbingly disarm litigants. Pp. 442 U.S. 553-554. (a) In defining the amount of jurisdictional limits, §1395oo(a)(3) of the Medicare Act sets forth three specifications: (1) the amount that may bring forth a jurisdictional specification; (2) the length of time that providers may appeal from the initial determination of the reimbursement due them; and (3) the proximity-based proximity requirement, which would otherwise classify as nonjurisdictional, does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions. In contrast, the statu- tory scheme here is not designed to be protective of claimants, nor is it one in which laymen, unassisted by trained lawyers, initiate the process of identifying an underpayment in their own NPR. Moreover, the Medicare payment system applies to institutional pro- viders assisted by legal counsel, and can hardly claim lack of notice of the Secretary's regulations. Furthermore, the fraud exception allowing indefinite reopening does apply to an intermediary if it procures a Board decision by a fraud or similar fault of any party to the determination. . (b) The time- limi- tation in § 1395oo (a) is most sensibly characterized as a nonjursictional prescription, and therefore does not bar the modest extension contained in the Secretary. It is not necessary that a court uphold the Secretary as long as it is a permissible construction of the statute, even if it differs from how the court would have interpreted the statute in the absence of an agency regulation. National Cable & Telecommunications Assn. v. Brand X Internet Services, Inc., 545 U. S. 967, 711, n. 9. A court must uphold a court's judgment as long as it differs from how that court would have interpreted the statute if it had interpreted it in the absent of agency regulation, since, as a general rule, Congress uses certain language in one part of the Act and different language in another to indicate that different meanings were intended. Here, however, the HHS regulation permits reopening of an intermediary's reimbursement determination at any time if it is established that such determination was procured by fraud, or by a bad-do-er fault of a party to a determination.. 2. The 90-day statutory deadline for a provider to appeal from an intermediary reimbursement determination is not jurisdictional, and thus the Secretary lawfully exercised her rulemaking authority in providing for a three-year "good cause" extension. This Court has never applied the Irwin presumption to an agency agency's internal appeal dead- line, here the time a provider has to appeal an inter- mediary reimbursement determination to the Public Resources Board... 642 F.3d 1145, reversed and remanded. APPEAL FROM THE UNITED STATES COURT OF APPEAL OF CURIAM.

2012_12-236

https://www.oyez.org/cases/2012/12-236

.[1]* The National Childhood Vaccine Injury Act of 1986 (NCVIA or Act), 100Stat. 3756, 42 U. S. C. §300aa–1 et seq., provides that a court may award attorney’s fees and costs “incurred [by a claimant] in any proceeding on” an unsuccessful vaccine-injury “petition filed under section 300aa–11,” if that petition “was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” §300aa–15(e)(1). The Act’s limitations provision states that “no petition may be filed for compensation” more than 36 months after the claimant’s initial symptoms occur. §300aa–16(a)(2). The question before us is whether an untimely petition can garner an award of attorney’s fees. We agree with a majority of the en banc Court of Appeals for the Federal Circuit that it can. I A The NCVIA “establishes a no-fault compensation program ‘designed to work faster and with greater ease than the civil tort system.’ ” Bruesewitz v. Wyeth LLC, 562 U. S. ___, ___ (2011) (slip op., at 3) (quoting Shalala v. White- cotton, 514 U.S. 268, 269 (1995)). Congress enacted the NCVIA to stabilize the vaccine market and expedite compensation to injured parties after complaints mounted regarding the inefficiencies and costs borne by both injured consumers and vaccine manufacturers under the pre- vious civil tort compensation regime. 562 U. S., at ___–___ (slip op., at 2–3); H. R. Rep. No. 99–908, pt. 1, pp. 6–7 (1986) (hereinafter H. R. Rep.). The compensation program’s procedures are straightforward. First, “[a] proceeding for compensation under the Program for a vaccine-related injury or death shall be initiated by service upon the Secretary [for the Department of Health and Human Services] and the filing of a petition containing the matter prescribed by subsection (c) of this section with the United States Court of Federal Claims.” 42 U. S. C. §300aa–11(a)(1). Subsection (c) pro- vides in relevant part that a petition must include “an affidavit, and supporting documentation, demonstrating that the person who suffered such injury” was actually vaccinated and suffered an injury. §300aa–11(c)(1). Next, upon receipt of an NCVIA petition, “[t]he clerk of the United States Court of Federal Claims shall immediately forward the filed petition to the chief special master for assignment to a special master.” §300aa–11(a)(1). This special master then “makes an informal adjudication of the petition.” Bruesewitz, 562 U. S., at ___ (slip op., at 3) (citing §300aa–12(d)(3)). A successful claimant may recover medical costs, lost earning capacity, and an award for pain and suffering, 42 U. S. C. §300aa–15(a), with compensation paid out from a federal trust fund supported by an excise tax levied on each dose of certain covered vaccines, see 26 U. S. C. §§4131, 4132, 9510; 42 U. S. C. §300aa–15(f)(4)(A). But under the Act’s limitations provision, “no petition may be filed for compensation under the Program for [a vaccine-related] injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of” the alleged injury. §300aa–16(a)(2). The Act also includes an unusual scheme for compensating attorneys who work on NCVIA petitions. See §300aa–15(e).[2] “No attorney may charge any fee for services in connection with a petition filed under section 300aa–11 of this title.” §300aa–15(e)(3).[3] But a court may award attorney’s fees in certain circumstances. In the case of successful petitions, the award of attorney’s fees is automatic. §300aa–15(e)(1) (“In awarding compensation on a petition filed under section 300aa–11 of this title the special master or court shall also award as part of such compensation an amount to cover . . . reasonable attorneys’ fees, and . . . other costs”). For unsuccessful petitions, “the special master or court may award an amount of compensation to cover petitioner’s reasonable attorneys’ fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” Ibid. In other words, “[a]ttorney’s fees are provided, not only for successful cases, but even for unsuccessful claims that are not frivolous.” Bruesewitz, 562 U. S., at ___ (slip op., at 4). B Respondent, Dr. Melissa Cloer, received three Hepatitis-B immunizations from September 1996 to April 1997. Shortly after receiving the third vaccine, Dr. Cloer began to experience numbness and strange sensations in her left forearm and hand. She sought treatment in 1998 and 1999, but the diagnoses she received were inconclusive. By then, Dr. Cloer was experiencing numbness in her face, arms, and legs, and she had difficulty walking. She intermittently suffered these symptoms until 2003, when she began to experience the full manifestations of, and was eventually diagnosed with, multiple sclerosis (MS). In 2004, Dr. Cloer became aware of a link between MS and the Hepatitis-B vaccine, and in September 2005, she filed a claim for compensation under the NCVIA, alleging that the vaccinations she received had caused or exacerbated her MS. Dr. Cloer’s petition was sent by the clerk of the Court of Federal Claims to the Chief Special Master, who went on to adjudicate it. After reviewing the petition and its supporting documentation, the Chief Special Master concluded that Dr. Cloer’s claim was untimely because the Act’s 36-month limitations period began to run when she first experienced the symptoms of MS in 1997. Cloer v. Secretary of Dept. of Health and Human Servs., No. 05–1002V, 2008 WL 2275574, *1, *10 (Fed. Cl., May 15, 2008) (opinion of Golkiewicz, Chief Special Master) (citing §300aa–16(a)(2) (NCVIA’s limitations provision)). Relying on Federal Circuit precedent, the Chief Special Master also rejected Dr. Cloer’s argument that the NCVIA’s limitations period should be subject to equitable tolling. Id., at *9 (citing Brice v. Secretary of Health and Human Servs., 240 F.3d 1367, 1373 (2001)). A divided panel of the Federal Circuit reversed the Chief Special Master, concluding that the NCVIA’s limitations period did not commence until “the medical community at large objectively recognize[d] a link between the vaccine and the injury.” Cloer v. Secretary of Health and Human Servs., 603 F.3d 1341, 1346 (2010). The en banc court then reversed the panel’s decision, Cloer v. Secretary of Health and Human Servs., 654 F.3d 1322 (2011), cert. denied, 566 U. S. ___ (2012), and held that the statute’s limitations period begins to run on “the calendar date of the occurrence of the first medically recognized symptom or manifestation of onset of the injury claimed by the petitioner.” 654 F. 3d, at 1324–1325. The Court of Appeals also held that the Act’s limitations provision was nonjurisdictional and subject to equitable tolling in limited circumstances, overruling its prior holding in Brice. 654 F. 3d, at 1341–1344. The court concluded, however, that Dr. Cloer was ineligible for tolling and that her petition was untimely. Id., at 1344–1345. Following this decision, Dr. Cloer moved for an award of attorney’s fees. The en banc Federal Circuit agreed with her that a person who files an untimely NCVIA petition “assert[ing] a reasonable limitations argument” may re- cover fees and costs so long as “ ‘the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.’ ” 675 F.3d 1358, 1359–1361 (2012) (quoting §300aa–15(e)(1)). Six judges disagreed with this conclusion and instead read the NCVIA to bar such awards for untimely petitions. Id., at 1364–1368 (Bryson, J., dissenting). We granted the Government’s petition for writ of certiorari. 568 U. S. ___ (2012). We now affirm. II A As in any statutory construction case, “[w]e start, of course, with the statutory text,” and proceed from the understanding that “[u]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.” BP America Production Co. v. Burton, 549 U.S. 84, 91 (2006). The Act’s fees provision ties eligibility for attorney’s fees broadly to “any proceeding on such petition,” referring specifically to “a petition filed under section 300aa–11.” 42 U. S. C. §§300aa–15(e)(1), (3). Section 300aa–11 provides that “[a] proceeding for compensation” is “initiated” by “service upon the Secretary” and “the filing of a petition containing” certain documentation with the clerk of the Court of Federal Claims who then “immediately forward[s] the filed petition” for assignment to a special master. §300aa–11(a)(1). See supra, at 2. Nothing in these two provisions suggests that the reason for the subsequent dismissal of a petition, such as its untimeliness, nullifies the initial filing of that petition. We have explained that “[a]n application is ‘filed,’ as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). When this ordinary meaning is applied to the text of the statute, it is clear that an NCVIA petition which is delivered to the clerk of the court, forwarded for processing, and adjudicated in a proceeding before a special master is a “petition filed under section 300aa–11.” 42 U. S. C. §300aa–15(e)(1). And so long as such a petition was brought in good faith and with a reasonable basis, it is eligible for an award of attorney’s fees, even if it is ultimately unsuccessful. Ibid. If Congress had intended to limit fee awards to timely petitions, it could easily have done so. But the NCVIA instead authorizes courts to award attorney’s fees for those unsuccessful petitions “brought in good faith and [for which] there was a reasonable basis.” Ibid.[4] The Government argues that the Act’s limitations provision, which states that “no petition may be filed for compensation” 36 months after a claimant’s initial symptoms began, §300aa–16(a)(2), constitutes “a statutory prerequisite to the filing of a petition ‘for compensation under the Program,’ ” Brief for Petitioner 16. Thus, the Government contends, a petition that fails to comply with these time limits is not “a petition filed under section 300aa–11” and is therefore ineligible for fees under §300aa–15(e)(1). See 675 F. 3d, at 1364–1366 (Bryson, J., dissenting). The Government’s argument lacks textual support. First, as noted, there is no cross-reference to the Act’s limitations provision in its fees provision, §300aa–15(e), or the other section it references, §300aa–11(a)(1). When these two linked sections are read in tandem they simply indicate that petitions filed with the clerk of the court are eligible for attorney’s fees so long as they comply with the other requirements of the Act’s fees provision. By its terms, the NCVIA requires nothing more for the award of attorney’s fees. A petition filed in violation of the limitations period will not result in the payment of compensation, of course, but it is still a petition filed under §300aa–11(a)(1).[5] When the Act does require compliance with the limitations period, it provides so expressly. For example, §300aa–11(a)(2)(A) prevents claimants from bringing suit against vaccine manufacturers “unless a petition has been filed, in accordance with section 300aa–16 of this title [the limitations provision], for compensation under the Program for such injury or death.” (Emphasis added.) We have long held that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Bates v. United States, 522 U.S. 23, 29–30 (1997) (internal quotation marks omitted). The absence of any cross-reference to the limitations provision in either the fees provision, §300aa–15(e)(1), or the instructions for initiating a compensation proceeding, §300aa–11(a)(1), indicates that a petition can be “filed” without being “in accordance with [the limitations provision].” Tellingly, nothing in §300aa–11(a)(1) requires a petitioner to allege or demonstrate the timeliness of his or her petition to initiate such a proceeding.[6] Second, to adopt the Government’s position, we would have to conclude that a petition like Dr. Cloer’s, which was “filed” under the ordinary meaning of that term but was later found to be untimely, was never filed at all because, on the Government’s reading, “no petition may be filed for compensation” late. §300aa–16(a)(2) (emphasis added). Yet the court below identified numerous instances throughout the NCVIA where the word “filed” is given its ordinary meaning, 675 F. 3d, at 1361, and the Government does not challenge this aspect of its decision. Indeed, the Government’s reading would produce anomalous results with respect to these other NCVIA provisions. Consider §300aa–12(b)(2), which provides that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 300aa–11 of this title the Secretary shall publish notice of such petition in the Federal Register.” If the NCVIA’s limitations provision worked to void the filing of an untimely petition, then one would expect the Secretary to make timeliness determinations prior to publishing such notice or to strike any petitions found to be untimely from the Federal Register. But there is no indication that the Secretary does either of these things.[7] The Government asks us to adopt a different definition of the term “filed” for a single subsection so that for fees purposes, and only for fees purposes, a petition filed out of time must be treated retroactively as though it was never filed in the first place. Nothing in the text or structure of the statute requires the unusual result the Government asks us to accept. In the NCVIA, the word “filed” carries its common meaning. See Artuz, 531 U. S., at 8. That “no petition may be filed for compensation” after the limitations period has run does not mean that a late petition was never filed at all. Our “inquiry ceases [in a statutory construction case] if the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (internal quotation marks omitted). The text of the statute is clear: like any other unsuccessful petition, an untimely petition brought in good faith and with a reasonable basis that is filed with—meaning delivered to and received by—the clerk of the Court of Federal Claims is eligible for an award of attorney’s fees. B The Government’s position is also inconsistent with the goals of the fees provision itself. A stated purpose of the Act’s fees scheme was to avoid “limit[ing] petitioners’ ability to obtain qualified assistance” by making fees awards available for “non-prevailing, good-faith claims.” H. R. Rep., at 22. The Government does not explain why Congress would have intended to discourage counsel from representing petitioners who, because of the difficulty of distinguishing between the initial symptoms of a vaccine-related injury and an unrelated malady, see, e.g., Smith v. Secretary of Dept. of Health and Human Servs., No. 02–93V, 2006 WL 5610517, *6–*7 (Fed. Cl., July 21, 2006) (opinion of Golkiewicz, Chief Special Master), may have good-faith claims with a reasonable basis that will only later be found untimely. III The Government offers two additional lines of argument for barring the award of attorney’s fees for untimely petitions. It first invokes two canons of construction: the canon favoring strict construction of waivers of sovereign immunity and the “ ‘presumption favoring the retention of long-established and familiar [common-law] principles.’ ” Brief for Petitioner 32 (quoting United States v. Texas, 507 U.S. 529, 534 (1993)). Similarly, the Government also argues that the NCVIA should be construed so as to minimize complex and costly fees litigation. But as the Government acknowledges, such canons and policy arguments come into play only “[t]o the extent that the Vaccine Act is ambiguous.” Brief for Petitioner 28. These “rules of thumb” give way when “the words of a statute are unambiguous,” as they are here. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–254 (1992). Second, the Government argues that permitting the recovery of attorney’s fees for untimely petitions will force special masters to carry out costly and wasteful “shadow trials,” with no benefit to claimants, in order to determine whether these late petitions were brought in good faith and with a reasonable basis. We reiterate that “when [a] statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000) (internal quotation marks omitted). Consequently, even if the plain text of the NCVIA requires that special masters occasionally carry out such “shadow trials,” that is not such an absurd burden as to require departure from the words of the Act. This is particularly true here because Congress has specifically provided for such “shadow trials” by permitting the award of attorney’s fees “in any proceeding [on an unsuccessful] petition” if such petition was brought in good faith and with a reasonable basis, 42 U. S. C. §300aa–15(e)(1) (emphasis added), irrespective of the reasons for the petition’s failure, see, e.g., Caves v. Secretary of Health and Human Servs., No. 07–443V, 2012 WL 6951286, *2, *13 (Fed. Cl., Dec. 20, 2012) (opinion of Moran, Special Master) (awarding attorney’s fees despite petitioner’s failure to prove causation). In any event, the Government’s fears appear to us exaggerated. Special masters consistently make fee deter- minations on the basis of the extensive documentation required by §300aa–11(c) and included with the petition.[8] Indeed, when adjudicating the timeliness of a petition, the special master may often have to develop a good sense of the merits of a case, and will therefore be able to determine if a reasonable basis exists for the petitioner’s claim, including whether there is a good-faith reason for the untimely filing. In this case, for example, the Chief Special Master conducted a “review of the record as a whole,” including the medical evidence that would have supported the merits of Dr. Cloer’s claim, before determining that her petition was untimely. Cloer, 2008 WL 2275574, *1–*2, *10. The Government also argues that permitting attorney’s fees on untimely petitions will lead to the filing of more untimely petitions. But the Government offers no evidence to support its speculation. Additionally, this argument is premised on the assumption that in the pursuit of fees, attorneys will choose to bring claims lacking good faith or a reasonable basis in derogation of their ethical duties. There is no basis for such an assumption. Finally, the special masters have shown themselves more than capable of discerning untimely claims supported by good faith and a reasonable basis from those that are specious. Supra, at 12. * * * We hold that an NCVIA petition found to be untimely may qualify for an award of attorney’s fees if it is filed in good faith and there is a reasonable basis for its claim. The judgment of the Court of Appeals is affirmed. It is so ordered. Notes 1 * Justice Scalia and Justice Thomas join all but Part II–B of this opinion. 2 The relevant paragraph provides: “(1) In awarding compensation on a petition filed under section 300aa–11 of this title the special master or court shall also award as part of such compensation an amount to cover— “(A) reasonable attorneys’ fees, and “(B) other costs, “incurred in any proceeding on such petition. If the judgment of the United States Court of Federal Claims on such a petition does not award compensation, the special master or court may award an amount of compensation to cover petitioner’s reasonable attorneys’ fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” §300aa–15(e). 3 For simplicity, we refer to attorney’s fees and costs as simply attorney’s fees. 4 The en banc dissent reasoned that a dismissal for untimeliness does not constitute a judgment on the merits of a petition. See 675 F.3d 1358, 1365 (CA Fed. 2012) (opinion of Bryson, J.). That argument is not pressed here by the Government, which acknowledged at oral argument that dismissals for untimeliness result in judgment against the petitioner. Tr. of Oral Arg. 12–13. 5 The Government suggests that giving the words of their statute their plain meaning would produce incongruous results; notably, it might indicate that “a failure to comply with the limitations provision would not even bar recovery under the Compensation Program itself because 42 U. S. C. 300aa-13 (‘Determination of eligibility and compensation’) does not expressly cross-reference the limitations provision.” Brief for Petitioner 18. The Government’s argument assumes that both sections are equivalently affected by absence of a cross-reference. This is incorrect. The Government is right that because “the law typically treats a limitations defense as an affirmative defense,” John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008), a failure to apply the limitations provision to the section outlining the conditions under which compensation should be awarded would be “contrary to [the Act’s] plain meaning and would produce an absurd result,” Milavetz, Gallop & Milavetz, P. A. v. United States, 559 U.S. 229, 252 (2010). In contrast, giving the Act’s fees provision its plain meaning would produce no such absurd result. It would simply allow petitioners to recover attorney’s fees for untimely petitions. 6 If the NCVIA’s limitations period were jurisdictional, then we might reach a different conclusion because the Chief Special Master would have lacked authority to act on Dr. Cloer’s untimely petition in the first place. But the Government chose not to seek certiorari from the Federal Circuit’s en banc decision holding that the period is nonjurisdictional, see Cloer v. Secretary of Health and Human Servs., 654 F.3d 1332, 1341–1344 (2011), and the Government now acknowledges that the NCVIA contains no “clear statement” that §300aa–16’s filing deadlines carry jurisdictional consequences. See Reply Brief 7 (discussing Sebelius v. Auburn Regional Medical Center, 568 U. S. ___ (2013)). 7 Dr. Cloer’s petition was published, and remains, in the Federal Register. See 70 Fed. Reg. 73011, 73014 (2005). 8 See, e.g., Wells v. Secretary of Dept. of Health and Human Servs., 28 Fed. Cl. 647, 649–651 (1993); Rydzewski v. Secretary of Dept. of Health and Human Servs., No. 99–571V, 2008 WL 382930, *2–*6 (Fed. Cl., Jan. 29, 2008) (opinion of Moran, Special Master); Hamrick v. Secretary of Health and Human Servs., No. 99–683V, 2007 WL 4793152, *2–*3, *5–*9 (Fed. Cl., Nov. 19, 2007) (opinion of Moran, Special Master).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES v. CLOER certiorari to the united states court of appeals for the federal circuit No. 12–236. Argued March 19, 2013—Decided May 20, 2013 The National Childhood Vaccine Injury Act of 1986 (NCVIA or Act) established a no-fault compensation system to stabilize the vaccine market and expedite compensation to injured parties. Bruesewitz v. Wyeth LLC, 562 U. S. ___, ___–___. Under the Act, “[a] proceeding for compensation” is “initiated” by “service upon the Secretary” of Health and Human Services and “the filing of a petition containing” specified documentation with the clerk of the Court of Federal Claims, who then “immediately” forwards the petition for assignment to a special master. 42 U. S. C. §300aa–11(a)(1). An attorney may not charge a fee for “services in connection with [such] a petition,” §300aa–15(e)(3), but a court may award attorney’s fees and costs “incurred [by a claimant] in any proceeding on” an unsuccessful “petition filed under section 300aa–11,” if that petition “was brought in good faith and there was a reasonable basis for the claim for which the petition was brought,” §300aa–15(e)(1). In 1997, shortly after receiving her third Hepatitis-B vaccine, respondent Cloer began to experience symptoms that eventually led to a multiple sclerosis (MS) diagnosis in 2003. In 2004, she learned of a link between MS and the Hepatitis-B vaccine, and in 2005, she filed a claim for compensation under the NCVIA, alleging that the vaccine caused or exacerbated her MS. After reviewing the petition and its supporting documentation, the Chief Special Master concluded that Cloer’s claim was untimely because the Act’s 36-month limitations period began to run when she had her first MS symptoms in 1997. The Federal Circuit ultimately agreed that Cloer’s petition was untimely. Cloer then sought attorney’s fees and costs (collectively, fees). The en banc Federal Circuit found that she was entitled to recover fees on her untimely petition. Held: An untimely NCVIA petition may qualify for an award of attorney’s fees if it is filed in good faith and there is a reasonable basis for its claim. . (a) As in any statutory construction case, this Court proceeds from the understanding that “[u]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.” BP America Production Co. v. Burton, 549 U.S. 84, 91. Nothing in either the NCVIA’s attorney’s fees provision, which ties eligibility to “any proceeding on such petition” and refers specifically to “a petition filed under section 300aa–11,” or the referenced §300aa–11 suggests that the reason for the subsequent dismissal of a petition, such as its untimeliness, nullifies the initial filing. As the term “filed” is commonly understood, an application is filed “when it is delivered to, and accepted by, the appropriate court officer for placement into the official record.” Artuz v. Bennett, 531 U.S. 4, 8. Applying this ordinary meaning to the text at issue, it is clear that an NCVIA petition delivered to the court clerk, forwarded for processing, and adjudicated in a proceeding before a special master is a “petition filed under section 300aa–11.” So long as it was brought in good faith and with a reasonable basis, it is eligible for an award of attorney’s fees, even if it is ultimately unsuccessful. Had Congress intended otherwise, it could have easily limited fee awards to timely petitions. The Government’s argument that the 36-month limitations period is a statutory prerequisite for filing lacks textual support. First, there is no cross-reference to the Act’s limitations provision in its fees provision, §300aa–15(e), or the referenced §300aa–11(a)(1). Second, reading the provision to provide that “no petition may be filed for compensation” late, as the Government asks, would require the Court to conclude that a petition like Cloer’s, which was “filed” under that term’s ordinary meaning but was later found to be untimely, was never filed at all. This Court’s “inquiry ceases [where, as here,] ‘the statutory language is unambiguous and “the statutory scheme is coherent and consistent.” ’ ” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450. The Government’s contrary position is also inconsistent with the fees provision’s purpose, which was to avoid “limit[ing] petitioners’ ability to obtain qualified assistance” by making awards available for “non-prevailing, good-faith claims.” H. R. Rep. No. 99–908, pt. 1, p. 22. . (b) The Government’s two additional lines of argument for barring the award of attorney’s fees for untimely petitions are unpersuasive. First, the canon of construction favoring strict construction of waivers of sovereign immunity, the presumption favoring the retention of familiar common-law principles, and the policy argument that the NCVIA should be construed so as to minimize complex and costly fees litigation must all give way when, as here, the statute’s words “are unambiguous.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–254. Second, even if the NCVIA’s plain text requires that special masters occasionally carry out “shadow trials” to determine whether late petitions were brought in good faith and with a reasonable basis, that is not such an absurd burden as to require departure from the words of the Act. This is especially true where Congress has specifically provided for such “shadow trials” by permitting the award of attorney’s fees “in any proceeding [on an unsuccessful] petition” if such petition was brought in good faith and with a reasonable basis. §300aa–15(e)(1). . 675 F.3d 1358, affirmed. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Alito, and Kagan, JJ., joined, and in which Scalia and Thomas, JJ., joined as to all but Part II–B.

The National Childhood Vaccine Injury Act of 1986 (NCVIA or Act) provides that a court may award attorney’s fees and costs to a claimant in any proceeding on an unsuccessful vaccine-injury petition filed under §300aa-11(a)(1) if that petition was brought in good faith and there was a reasonable basis for the claim for which it was brought. However, under the Act, no petition may be filed for compensation more than 36 months after the claimant began suffering symptoms of multiple sclerosis (MS). The Act also includes an unusual scheme for compensating attorneys who work on petitions for compensation. A successful claimant may recover medical costs, lost earning capacity, and an award for pain and suffering, with compensation paid out from a federal trust fund supported by an excise tax levied on each dose of certain covered vaccines. Under the Act's limitations provision, no such compensation may then be filed. Respondent, a successful claimant, received three Hepatitis-B immunizations from September 1996 to April 1997. Shortly after receiving the third vaccine, she began to experience strange sensations in her left forearm and hand, and in September 2005, she filed a claim for compensation under the NCVIA, alleging that the vaccinations she received had caused or exacerbated her MS. The Court of Federal Claims adjudicated the petition, concluding that respondent was ineligible for tolling because her claim was untimely because the Act had begun to run when she first experienced the symptoms of MS in 1997. The Federal Circuit reversed, rejecting respondent, inter alia, her claim for attorney's fees, and holding that the Act was nonjurisdictional and subject to equitable tolling in limited circumstances. The court concluded, however, that she was ineligible, and that her petition was not entitled to such fees. Held: Petitioner may qualify for an award of attorney's fees if it is filed, good faith, and there is a reasonable basis for its claim. . (a) By its terms, the Act requires nothing more than a statutory prerequisite to the filing of a petition for compensation, and when the Act does require compliance with the limitations period, it expressly provides that any petition filed with the court clerk shall also award as part of such compensation an amount to cover. Here, there is no cross-reference to the Act in its fees provision or in the other section it references, and nothing in that provision indicates that a late petition was never filed at all. Moreover, to adopt the Government's position, it would have to conclude that a petition like respondent, which was submitted under the ordinary meaning of that term but was later found to be untimelier, was never, on the basis of the extensive documentation required by the Act and included with the petition. Nothing in the Act or its limitations provision suggests that the reason for the subsequent dismissal, such as its untimeliness, nullifies the initial filing of that petition, and, in any event, the Secretary of Health and Human Servs., the Chief Special Master, does neither of these things. Nor does the fact that Congress has specifically provided for such procedures by permitting the award of attorneys' fees retroactively as though it was never filed in the first place require the unusual result that the Government asks to accept. And the Government does not explain why Congress would have intended to discourage counsel from representing petitioners who, because of the difficulty of distinguishing between the initial symptoms of a vaccine-related injury and an unrelated malady, may have good-faith claims with a reasonable basis that will only later be found imely. Pp. 675 F. 3d 1322, affirmed. (b) The Government argues that permitting recovery of attorney's fees for untimelies petitions will force special masters to carry out costly and wasteful proceedings, with no benefit to claimants, in order to determine whether the late petitions were brought in good faith and with a reasonable reason. Because the law typically treats a limitations defense as an affirmative defense, a failure to apply the limitations provision to the section outlining the conditions under which compensation should be awarded would be contravening the Act plain meaning and would produce an absurd result, Milavetz v. Bennett, 531 U.S. 4, 8. But the Government offers no evidence to support its speculation that permitting fees will lead to a filing of more untimelys petitions. Furthermore, the special masters have shown themselves more than capable of discerning such claims supported by good faith. See, e.g., Wells v. Secretary of Dept. of Health & Human Services., No. 02–93V, 6-*7 (Fed. Cl., July 21, 2006); Golkiewicz v. Special Master), 6. This argument is also inconsistent with the goals of the fees provision itself, which is to avoid limit[ing] petitioners' ability to obtain qualified assistance by making fees awards available for nonprevailing, goodfaith claims

2012_12-357

https://www.oyez.org/cases/2012/12-357

. We consider whether attempting to compel a person to recommend that his employer approve an investment con- stitutes “the obtaining of property from another” under 18 U. S. C. §1951(b)(2). I New York’s Common Retirement Fund is an employee pension fund for the State of New York and its local governments. As sole trustee of the Fund, the State Comptroller chooses Fund investments. When the Comptroller decides to approve an investment he issues a “Commitment.” A Commitment, however, does not actually bind the Fund. For that to happen, the Fund and the recipient of the investment must enter into a limited partnership agreement. 683 F. 3d 436, 438 (CA2 2012). Petitioner Giridhar Sekhar was a managing partner of FA Technology Ventures. In October 2009, the Comptroller’s office was considering whether to invest in a fund managed by that firm. The office’s general counsel made a written recommendation to the Comptroller not to invest in the fund, after learning that the Office of the New York Attorney General was investigating another fund managed by the firm. The Comptroller decided not to issue a Commitment and notified a partner of FA Technology Ventures. That partner had previously heard rumors that the general counsel was having an extramarital affair. The general counsel then received a series of anony- mous e-mails demanding that he recommend moving for- ward with the investment and threatening, if he did not, to disclose information about his alleged affair to his wife, government officials, and the media. App. 59–61. The general counsel contacted law enforcement, which traced some of the e-mails to petitioner’s home computer and other e-mails to offices of FA Technology Ventures. Petitioner was indicted for, and a jury convicted him of, attempted extortion, in violation of the Hobbs Act, 18 U. S. C. §1951(a). That Act subjects a person to criminal liability if he “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do.” §1951(a). The Act defines “extortion” to mean “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” §1951(b)(2). [ 1 ] On the verdict form, the jury was asked to specify the property that petitioner attempted to extort: (1) “the Commitment”; (2) “the Comptroller’s approval of the Commitment”; or (3) “the General Counsel’s recommendation to approve the Commitment.” App. 141–142. The jury chose only the third option. The Court of Appeals for the Second Circuit affirmed the conviction. The court held that the general counsel “had a property right in rendering sound legal advice to the Comptroller and, specifically, to recommend—free from threats—whether the Comptroller should issue a Commitment for [the funds].” 683 F. 3d, at 441. The court concluded that petitioner not only attempted to deprive the general counsel of his “property right,” but that petitioner also “attempted to exercise that right by forcing the General Counsel to make a recommendation determined by [petitioner].” Id., at 442. We granted certiorari. 568 U. S. ___ (2013). II A Whether viewed from the standpoint of the common law, the text and genesis of the statute at issue here, or the jurisprudence of this Court’s prior cases, what was charged in this case was not extortion. It is a settled principle of interpretation that, absent other indication, “Congress intends to incorporate the well-settled meaning of the common-law terms it uses.” Neder v. United States, 527 U. S. 1, 23 (1999) . “[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.” Morissette v. United States, 342 U. S. 246, 263 (1952) . Or as Justice Frankfurter colorfully put it, “if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947). The Hobbs Act punishes “extortion,” one of the oldest crimes in our legal tradition, see E. Coke, The Third Part of the Institutes of the Laws of England 148–150 (1648) (reprint 2008). The crime originally applied only to extortionate action by public officials, but was later extended by statute to private extortion. See 4 C. Torcia, Wharton’s Criminal Law §§695, 699 (14th ed. 1981). As far as is known, no case predating the Hobbs Act—English, federal, or state—ever identified conduct such as that charged here as extortionate. Extortion required the obtaining of items of value, typically cash, from the victim. See, e.g., People v. Whaley, 6 Cow. 661 (N. Y. Sup. Ct. 1827) (justice of the peace properly indicted for extorting money); Commonwealth v. Bagley, 24 Mass. 279 (1828) (officer properly convicted for demanding a fee for letting a man out of prison); Commonwealth v. Mitchell, 66 Ky. 25 (1867) (jailer properly indicted for extorting money from pris- oner); Queen v. Woodward, 11 Mod. 137, 88 Eng. Rep. 949 (K. B. 1707) (upholding indictment for extorting “money and a note”). It did not cover mere coercion to act, or to refrain from acting. See, e.g., King v. Burdett, 1 Ld. Raym. 149, 91 Eng. Rep. 996 (K. B. 1696) (dictum) (extortion consisted of the “taking of money for the use of the stalls,” not the deprivation of “free liberty to sell [one’s] wares in the market according to law”). The text of the statute at issue confirms that the alleged property here cannot be extorted. Enacted in 1946, the Hobbs Act defines its crime of “extortion” as “the ob- taining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U. S. C. §1951(b)(2) (emphasis added). Obtaining property requires “not only the deprivation but also the acquisition of property.” Scheidler v. National Organization for Women, Inc., 537 U. S. 393, 404 (2003) (citing United States v. Enmons, 410 U. S. 396, 400 (1973) ). That is, it requires that the victim “part with” his property, R. Perkins & R. Boyce, Criminal Law 451 (3d ed. 1982), and that the extortionist “gain possession” of it, Scheidler, supra, at 403, n. 8; see also Webster’s New International Dictionary 1682 (2d ed. 1949) (defining “obtain”); Murray, Note, Protesters, Extortion, and Coercion: Preventing RICO from Chilling First Amendment Freedoms, 75 Notre Dame L. Rev. 691, 706 (1999) (Murray). The property extorted must therefore be transferable—that is, capable of passing from one person to another. The alleged property here lacks that defining feature. [ 2 ] The genesis of the Hobbs Act reinforces that conclusion. The Act was modeled after §850 of the New York Penal Law (1909), which was derived from the famous Field Code, a 19th-century model penal code, see 4 Commissioners of the Code, Penal Code of the State of New York §613, p. 220 (1865) (reprint 1998). Congress borrowed, nearly verbatim, the New York statute’s definition of extortion. See Scheidler, 537 U. S., at 403. The New York statute contained, in addition to the felony crime of extortion, a new (that is to say, nonexistent at common law) misdemeanor crime of coercion. Whereas the former required, as we have said, “ ‘the criminal acquisition of . . . property,’ ” ibid., the latter required merely the use of threats “to compel another person to do or to abstain from doing an act which such other such person has a legal right to do or to abstain from doing.” N. Y. Penal Law §530 (1909), earlier codified in N. Y. Penal Code §653 (1881). Congress did not copy the coercion provision. The omission must have been deliberate, since it was perfectly clear that extortion did not include coercion. At the time of the borrowing (1946), New York courts had consistently held that the sort of interference with rights that occurred here was coercion. See, e.g., People v. Ginsberg, 262 N. Y. 556, 188 N. E. 62 (1933) (per curiam) (compelling store owner to become a member of a trade association and to remove advertisements); People v. Scotti, 266 N. Y. 480, 195 N. E. 162 (App. Div. 1934) (compelling victim to enter into agreement with union); People v. Kaplan, 240 App. Div. 72, 74–75, 269 N. Y. S. 161, 163–164, aff’d, 264 N. Y. 675, 191 N. E. 621 (1934) (compelling union members to drop lawsuits against union leadership). [ 3 ] And finally, this Court’s own precedent similarly demands reversal of petitioner’s convictions. In Scheidler, we held that protesters did not commit extortion under the Hobbs Act, even though they “interfered with, disrupted, and in some instances completely deprived” abortion clinics of their ability to run their business. 537 U. S., at 404–405. We reasoned that the protesters may have deprived the clinics of an “alleged property right,” but they did not pursue or receive “ ‘something of value from’ ” the clinics that they could then “exercise, transfer, or sell” themselves. Id., at 405. The opinion supported its holding by citing the three New York coercion cases discussed above. See id., at 405–406. This case is easier than Scheidler, where one might at least have said that physical occupation of property amounted to obtaining that property. The deprivation alleged here is far more abstract. Scheidler rested its decision, as we do, on the term “obtaining.” Id., at 402, n. 6. The principle announced there—that a defendant must pursue something of value from the victim that can be exercised, transferred, or sold—applies with equal force here. [ 4 ] Whether one considers the personal right at issue to be “property” in a broad sense or not, it certainly was not obtainable property under the Hobbs Act. [ 5 ] B The Government’s shifting and imprecise characterization of the alleged property at issue betrays the weakness of its case. According to the jury’s verdict form, the “property” that petitioner attempted to extort was “the General Counsel’s recommendation to approve the Commitment.” App. 142. But the Government expends minuscule effort in defending that theory of conviction. And for good reason—to wit, our decision in Cleveland v. United States, 531 U. S. 12 (2000) , which reversed a business owner’s mail-fraud conviction for “obtaining money or property” through misrepresentations made in an application for a video-poker license issued by the State. We held that a “license” is not “property” while in the State’s hands and so cannot be “obtained” from the State. Id., at 20–22. Even less so can an employee’s yet-to-be-issued recommendation be called obtainable property, and less so still a yet-to-be-issued recommendation that would merely ap- prove (but not effect) a particular investment. Hence the Government’s reliance on an alternative, more sophisticated (and sophistic) description of the property. Instead of defending the jury’s description, the Gov- ernment hinges its case on the general counsel’s “intangible property right to give his disinterested legal opinion to his client free of improper outside interference.” Brief for United States 39. But what, exactly, would the petitioner have obtained for himself? A right to give his own disinterested legal opinion to his own client free of improper interference? Or perhaps, a right to give the general counsel’s disinterested legal opinion to the general counsel’s client? Either formulation sounds absurd, because it is. Clearly, petitioner’s goal was not to acquire the general coun- sel’s “intangible property right to give disinterested legal advice.” It was to force the general counsel to offer advice that accorded with petitioner’s wishes. But again, that is coercion, not extortion. See Murray 721–722. No fluent speaker of English would say that “petitioner obtained and exercised the general counsel’s right to make a recommendation,” any more than he would say that a person “obtained and exercised another’s right to free speech.” He would say that “petitioner forced the general counsel to make a particular recommendation,” just as he would say that a person “forced another to make a statement.” Adopting the Government’s theory here would not only make nonsense of words; it would collapse the longstanding distinction between extortion and coercion and ignore Congress’s choice to penalize one but not the other. See Scheidler, supra, at 409. That we cannot do. The judgment of the Court of Appeals for the Second Circuit is reversed. It is so ordered. Notes 1 Petitioner was also convicted of several counts of interstate transmission of extortionate threats, in violation of . Under §875(d), a person is criminally liable if he, “with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee.” In this case, both parties concede that the definition of “extortion” under the Hobbs Act also applies to the §875(d) counts. We express no opinion on the validity of that concession. 2 It may well be proper under the Hobbs Act for the Government to charge a person who obtains money by threatening a third party, who obtains funds belonging to a corporate or governmental entity by threatening the entity’s agent, see 2 J. Bishop, Criminal Law §408, p. 334, and n. 3 (9th ed. 1923) (citing State v. Moore, 1 Ind. 548 (1849)), or who obtains “goodwill and customer revenues” by threatening a market competitor, see, e.g., United States v. Zemek, 634 F. 2d 1159, 1173 (CA9 1980). Each of these might be considered “obtaining property from another.” We need not consider those situations, however, because the Government did not charge any of them here. 3 Also revealing, the New York code prohibited conspiracy “[t]o prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation.” N. Y. Penal Law §580(5) (1909) (emphasis added). That separate codification, which Con-gress did not adopt, is further evidence that the New York crime of extortion (and hence the federal crime) did not reach interference with a person’s right to ply a lawful trade, similar to the right claimed here. Seeking to extract something from the void, the Government relies on cases that interpret a provision of the New York code definingthe kinds of threats that qualify as threats to do “unlawful injury to the person or property,” which is what the extortion statute requires. See N. Y. Penal Code §553 (1881); N. Y. Penal Law §851 (1909). Those cases held that they include threats to injure a business by preventing the return of workers from a strike, People v. Barondess, 133 N. Y. 649, 31 N. E. 240, 241–242 (1892) (per curiam), and threats to terminate a person’s employment, People ex rel. Short v. Warden, 145 App. Div. 861, 130 N. Y. S. 698, 700–701 (1911), aff’d, 206 N. Y. 632, 99 N. E. 1116 (1912) (per curiam). Those cases are entirely inapposite here, where the issue is not what constitutes a qualifying threat but what constitutes obtainable property. 4 The Government’s attempt to distinguish Scheidler is unconvinc-ing. In its view, had the protesters sought to force the clinics to pro-vide services other than abortion, extortion would have been a proper charge. Petitioner committed extortion here, the Government says, because he did not merely attempt to prevent the general counsel from giving a recommendation but tried instead to force him to issue one. That distinction is, not to put too fine a point on it, nonsensical. It is coercion, not extortion, when a person is forced to do something and when he is forced to do nothing. See, e.g., N. Y. Penal Law §530 (1909) (it is a misdemeanor to coerce a “person to do or to abstain from doing an act”). Congress’s enactment of the Hobbs Act did not, through the phrase “obtaining of property from another,” suddenly transform every act that coerces affirmative conduct into a crime punishable for up to 20 years, while leaving those who “merely” coerce inaction immune from federal punishment. 5 The concurrence contends that the “right to make [a] recommendation” is not property. Post, at 4 (Alito, J., concurring in judgment). We are not sure of that. If one defines property to include anything of value, surely some rights to make recommendations would qualify—for example, a member of the Pulitzer Prize Committee’s right to recommend the recipient of the prize. I suppose that a prominent journalist would not give up that right (he cannot, of course, transfer it) for a significant sum of money—so it must be valuable. But the point relevant to the present case is that it cannot be transferred, so it cannot be the object of extortion under the statute.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SEKHAR v. UNITED STATES certiorari to the united states court of appeals for the second circuit No. 12–357. Argued April 23, 2013—Decided June 26, 2013 Investments for the employee pension fund of the State of New York and its local governments are chosen by the fund’s sole trustee, the State Comptroller. After the Comptroller’s general counsel recommended against investing in a fund managed by FA Technology Ventures, the general counsel received anonymous e-mails demanding that he recommend the investment and threatening, if he did not, to disclose information about the general counsel’s alleged affair to his wife, government officials, and the media. Some of the e-mails were traced to the home computer of petitioner Sekhar, a managing partner of FA Technology Ventures. Petitioner was convicted of attempted extortion, in violation of the Hobbs Act, 18 U. S. C. §1951(a), which defines “extortion” to mean “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right,” §1951(b)(2). The jury specified that the property petitioner attempted to extort was the general counsel’s recommendation to approve the investment. The Second Circuit affirmed. Held: Attempting to compel a person to recommend that his employer approve an investment does not constitute “the obtaining of property from another” under the Hobbs Act. . (a) Absent other indication, “Congress intends to incorporate the well-settled meaning of the common-law terms it uses.” Neder v. United States, 527 U.S. 1, 23. As far as is known, no case predating the Hobbs Act—English, federal, or state—ever identified conduct such as that charged here as extortionate. Extortion required the obtaining of items of value, typically cash, from the victim. The Act’s text confirms that obtaining property requires “not only the deprivation but also the acquisition of property.” Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 404. The property extorted must therefore be transferable—that is, capable of passing from one person to another, a defining feature lacking in the alleged property here. The genesis of the Hobbs Act reinforces that conclusion. Congress borrowed nearly verbatim the definition of extortion from a 1909 New York statute but did not copy the coercion provision of that statute. And in 1946, the time of the borrowing, New York courts had consistently held that the sort of interference with rights that occurred here was coercion. Finally, this Court’s own precedent demands reversal of petitioner’s convictions. See id., at 404–405. . (b) The Government’s defense of the theory of conviction is unpersuasive. No fluent speaker of English would say that “petitioner obtained and exercised the general counsel’s right to make a recommendation,” any more than he would say that a person “obtained and exercised another’s right to free speech.” He would say that “petitioner forced the general counsel to make a particular recommendation,” just as he would say that a person “forced another to make a statement.” Adopting the Government’s theory here would not only make nonsense of words; it would collapse the longstanding distinction between extortion and coercion and ignore Congress’s choice to penalize one but not the other. See Scheidler, supra, at 409. . 683 F.3d 436, reversed. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, Breyer, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Kennedy and Sotomayor, JJ., joined.

When the New York Comptroller decides to approve an investment in a New York state employee pension fund, he issues a Commitment, which does not bind the Fund. However, for that to happen, the Fund and the recipient must enter into a limited partnership agreement. Petitioner, a managing partner of a venture capital firm, received e-mails demanding that he recommend moving for- ward with the fund and threatening, if he did not, to disclose information about his alleged affair to his wife, government officials, and the media. The general counsel contacted law enforcement, which traced some of the e-mail to petitioner's home computer. The jury chose only the third option, and petitioner was convicted of attempted extortion. The Court of Appeals affirmed the conviction, holding that the general counsel had a property right in rendering sound legal advice to the Comptroller and in recommending, free from threats, whether the Comptptroller should issue the Commitment for the funds. Held: The property that petitioner attempted to extort con- stitutes "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." [ 1] Whether viewed from the standpoint of the common law, the text and genesis of the statute at issue, or the jurisprudence of this Court's prior cases, what was charged in this case was not extortion. . (a) Whether one considers the personal right at issue to be property in a broad sense or not, it certainly was not obtainable property under the Hobbs Act. The New York crime of extortion (and hence the federal crime) did not reach interference with a person's right to ply a lawful trade, similar to the right claimed here. P.. (b) The fact that the property at issue was the General Counsel, rather than his recommendation to approve the commitment, is irrelevant, since the Code defines the kinds of threats that qualify as threats to do unlawful injury to the person or property, which is what the extortion statute requires. See Cleveland v. United States, 531 U. S. 12 (2000); N. Y. Penal Law 451 (3d ed. 1982), which held that a "license" is not property while in the State's hands and so cannot be obtained from the State, and even less so can an employee, yet-to-be-issued recommendation that would merely ap- prove (but not effect) a particular investment. Hence the Government relies on an alternative, more sophisticated (and sophistic) description of the property. Instead of defending the jury's description, the Gov-ernment hinges its case on petitioner, his general counsels intangible property right to give his disinterested legal opinion to his client free of improper outside interference. It is absurd to contemplate that the goal of extortion is to compel a person forced to do something to coerce and coerce, and when it is not, coercion is not coercion. Adopting the Government's theory here would not only make nonsense of words, but would collapse the longstanding distinction between extortion and coercion and ignore Congress' choice to penalize one but not the other. That this Court cannot do is not done. That cannot do. That is not the case. Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 404 (2003), distinguished.. 683 F. 3d 436, reversed. REHNQUIST, J., wrote the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, post, p..

2012_12-96

https://www.oyez.org/cases/2012/12-96

. The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And §4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966) . As we explained in upholding the law, “exceptional conditions can justify legislative measures not otherwise appropriate.” Id., at 334. Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years. See Voting Rights Act of 1965, §4(a), 79Stat. 438. Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, “the racial gap in voter registration and turnout [was] lower in the States originally covered by §5 than it [was] nationwide.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193 –204 (2009). Since that time, Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent. See Dept. of Commerce, Census Bureau, Re-ported Voting and Registration, by Sex, Race and His-panic Origin, for States (Nov. 2012) (Table 4b). At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, “the Act imposes current burdens and must be justified by current needs.” Northwest Austin, 557 U. S., at 203. I A The Fifteenth Amendment was ratified in 1870, in the wake of the Civil War. It provides that “[t]he 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,” and it gives Congress the “power to enforce this article by appropriate legislation.” “The first century of congressional enforcement of the Amendment, however, can only be regarded as a failure.” Id., at 197. In the 1890s, Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia began to enact literacy tests for voter registration and to employ other methods designed to prevent African-Americans from voting. Katzenbach, 383 U. S., at 310. Congress passed statutes outlawing some of these practices and facilitating litigation against them, but litigation remained slow and expensive, and the States came up with new ways to discriminate as soon as existing ones were struck down. Voter registration of African-Americans barely improved. Id., at 313–314. Inspired to action by the civil rights movement, Congress responded in 1965 with the Voting Rights Act. Section 2 was enacted to forbid, in all 50 States, any “standard, practice, or procedure . . . imposed or applied . . . to deny or abridge the right of any citizen of the United States to vote on account of race or color.” 79Stat. 437. The current version forbids any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U. S. C. §1973(a). Both the Federal Government and individuals have sued to enforce §2, see, e.g., Johnson v. De Grandy, 512 U. S. 997 (1994) , and injunctive relief is available in appropriate cases to block voting laws from going into effect, see 42 U. S. C. §1973j(d). Section 2 is permanent, applies nationwide, and is not at issue in this case. Other sections targeted only some parts of the country. At the time of the Act’s passage, these “covered” jurisdictions were those States or political subdivisions that had maintained a test or device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election. §4(b), 79Stat. 438. Such tests or devices included literacy and knowledge tests, good moral character requirements, the need for vouchers from registered voters, and the like. §4(c), id., at 438–439. A covered jurisdiction could “bail out” of coverage if it had not used a test or device in the preceding five years “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” §4(a), id., at 438. In 1965, the covered States included Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. The additional covered subdivisions included 39 counties in North Carolina and one in Arizona. See 28 CFR pt. 51, App. (2012). In those jurisdictions, §4 of the Act banned all such tests or devices. §4(a), 79Stat. 438. Section 5 provided that no change in voting procedures could take effect until it was approved by federal authorities in Washington, D. C.—either the Attorney General or a court of three judges. Id., at 439. A jurisdiction could obtain such “preclearance” only by proving that the change had neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.” Ibid. Sections 4 and 5 were intended to be temporary; they were set to expire after five years. See §4(a), id., at 438; Northwest Austin, supra, at 199. In South Carolina v. Katzenbach, we upheld the 1965 Act against constitutional challenge, explaining that it was justified to address “voting discrimination where it persists on a pervasive scale.” 383 U. S., at 308. In 1970, Congress reauthorized the Act for another five years, and extended the coverage formula in §4(b) to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1968. Voting Rights Act Amendments of 1970, §§3–4, 84Stat. 315. That swept in several counties in California, New Hampshire, and New York. See 28 CFR pt. 51, App. Congress also extended the ban in §4(a) on tests and devices nationwide. §6, 84Stat. 315. In 1975, Congress reauthorized the Act for seven more years, and extended its coverage to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1972. Voting Rights Act Amendments of 1975, §§101, 202, 89Stat. 400, 401. Congress also amended the definition of “test or device” to include the practice of providing English-only voting materials in places where over five percent of voting-age citizens spoke a single language other than English. §203, id., at 401–402. As a result of these amendments, the States of Alaska, Arizona, and Texas, as well as several counties in California, Flor-ida, Michigan, New York, North Carolina, and South Da-kota, became covered jurisdictions. See 28 CFR pt. 51, App. Congress correspondingly amended sections 2 and 5 to forbid voting discrimination on the basis of membership in a language minority group, in addition to discrimination on the basis of race or color. §§203, 206, 89Stat. 401, 402. Finally, Congress made the nationwide ban on tests and devices permanent. §102, id., at 400. In 1982, Congress reauthorized the Act for 25 years, but did not alter its coverage formula. See Voting Rights Act Amendments, 96Stat. 131. Congress did, however, amend the bailout provisions, allowing political subdivisions of covered jurisdictions to bail out. Among other prerequisites for bailout, jurisdictions and their subdivisions must not have used a forbidden test or device, failed to receive preclearance, or lost a §2 suit, in the ten years prior to seeking bailout. §2, id., at 131–133. We upheld each of these reauthorizations against constitutional challenge. See Georgia v. United States, 411 U. S. 526 (1973) ; City of Rome v. United States, 446 U. S. 156 (1980) ; Lopez v. Monterey County, 525 U. S. 266 (1999) . In 2006, Congress again reauthorized the Voting Rights Act for 25 years, again without change to its coverage formula. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amend-ments Act, 120Stat. 577. Congress also amended §5 to prohibit more conduct than before. §5, id., at 580– 581; see Reno v. Bossier Parish School Bd., 528 U. S. 320, 341 (2000) (Bossier II); Georgia v. Ashcroft, 539 U. S. 461, 479 (2003) . Section 5 now forbids voting changes with “any discriminatory purpose” as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, “to elect their preferred candidates of choice.” 42 U. S. C. §§1973c(b)–(d). Shortly after this reauthorization, a Texas utility district brought suit, seeking to bail out from the Act’s cover- age and, in the alternative, challenging the Act’s constitutionality. See Northwest Austin, 557 U. S., at 200–201. A three-judge District Court explained that only a State or political subdivision was eligible to seek bailout under the statute, and concluded that the utility district was not a political subdivision, a term that encompassed only “counties, parishes, and voter-registering subunits.” Northwest Austin Municipal Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 232 (DC 2008). The District Court also rejected the constitutional challenge. Id., at 283. We reversed. We explained that “ ‘normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.’ ” Northwest Austin, supra, at 205 (quoting Escambia County v. McMillan, 466 U. S. 48, 51 (1984) (per curiam)). Concluding that “underlying constitutional concerns,” among other things, “compel[led] a broader reading of the bailout provision,” we construed the statute to allow the utility district to seek bailout. Northwest Austin, 557 U. S., at 207. In doing so we expressed serious doubts about the Act’s con-tinued constitutionality. We explained that §5 “imposes substantial federalism costs” and “differentiates between the States, despite our his- toric tradition that all the States enjoy equal sovereignty.” Id., at 202, 203 (internal quotation marks omitted). We also noted that “[t]hings have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprece-dented levels.” Id., at 202. Finally, we questioned whether the problems that §5 meant to address were still “concentrated in the jurisdictions singled out for preclearance.” Id., at 203. Eight Members of the Court subscribed to these views, and the remaining Member would have held the Act unconstitutional. Ultimately, however, the Court’s construction of the bailout provision left the constitutional issues for another day. B Shelby County is located in Alabama, a covered jurisdiction. It has not sought bailout, as the Attorney General has recently objected to voting changes proposed from within the county. See App. 87a–92a. Instead, in 2010, the county sued the Attorney General in Federal District Court in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 of the Voting Rights Act are facially unconstitutional, as well as a permanent injunction against their enforcement. The District Court ruled against the county and upheld the Act. 811 F. Supp. 2d 424, 508 (2011). The court found that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing the §4(b) coverage formula. The Court of Appeals for the D. C. Circuit affirmed. In assessing §5, the D. C. Circuit considered six primary categories of evidence: Attorney General objections to voting changes, Attorney General requests for more information regarding voting changes, successful §2 suits in covered jurisdictions, the dispatching of federal observers to monitor elections in covered jurisdictions, §5 preclearance suits involving covered jurisdictions, and the deterrent effect of §5. See 679 F. 3d 848, 862–863 (2012). After extensive analysis of the record, the court accepted Congress’s conclusion that §2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, and that §5 was therefore still necessary. Id., at 873. Turning to §4, the D. C. Circuit noted that the evidence for singling out the covered jurisdictions was “less robust” and that the issue presented “a close question.” Id., at 879. But the court looked to data comparing the number of successful §2 suits in the different parts of the country. Coupling that evidence with the deterrent effect of §5, the court concluded that the statute continued “to single out the jurisdictions in which discrimination is concentrated,” and thus held that the coverage formula passed constitutional muster. Id., at 883. Judge Williams dissented. He found “no positive cor-relation between inclusion in §4(b)’s coverage formula and low black registration or turnout.” Id., at 891. Rather, to the extent there was any correlation, it actually went the other way: “condemnation under §4(b) is a marker of higher black registration and turnout.” Ibid. (emphasis added). Judge Williams also found that “[c]overed jurisdictions have far more black officeholders as a proportion of the black population than do uncovered ones.” Id., at 892. As to the evidence of successful §2 suits, Judge Williams disaggregated the reported cases by State, and concluded that “[t]he five worst uncovered jurisdictions . . . have worse records than eight of the covered jurisdictions.” Id., at 897. He also noted that two covered jurisdictions—Arizona and Alaska—had not had any successful reported §2 suit brought against them during the entire 24 years covered by the data. Ibid. Judge Williams would have held the coverage formula of §4(b) “irrational” and unconstitutional. Id., at 885. We granted certiorari. 568 U. S. ___ (2012). II In Northwest Austin, we stated that “the Act imposes current burdens and must be justified by current needs.” 557 U. S., at 203. And we concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Ibid. These basic principles guide our review of the question before us. [ 1 ] A The Constitution and laws of the United States are “the supreme Law of the Land.” U. S. Const., Art. VI, cl. 2. State legislation may not contravene federal law. The Federal Government does not, however, have a general right to review and veto state enactments before they go into effect. A proposal to grant such authority to “negative” state laws was considered at the Constitutional Convention, but rejected in favor of allowing state laws to take effect, subject to later challenge under the Supremacy Clause. See 1 Records of the Federal Convention of 1787, pp. 21, 164–168 (M. Farrand ed. 1911); 2 id., at 27–29, 390–392. Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives. Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10. This “allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9). But the federal balance “is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” Ibid. (internal quotation marks omitted). More specifically, “ ‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’ ” Gregory v. Ashcroft, 501 U. S. 452 –462 (1991) (quoting Sugarman v. Dougall, 413 U. S. 634, 647 (1973) ; some internal quotation marks omitted). Of course, the Federal Government retains significant control over federal elections. For instance, the Constitution authorizes Congress to establish the time and manner for electing Senators and Representatives. Art. I, §4, cl. 1; see also Arizona v. Inter Tribal Council of Ariz., Inc., ante, at 4–6. But States have “broad powers to determine the conditions under which the right of suffrage may be exercised.” Carrington v. Rash, 380 U. S. 89, 91 (1965) (internal quotation marks omitted); see also Arizona, ante, at 13–15. And “[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.” Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 161 (1892) . Drawing lines for congressional districts is likewise “primarily the duty and responsibility of the State.” Perry v. Perez, 565 U. S. ___, ___ (2012) (per curiam) (slip op., at 3) (internal quotation marks omitted). Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960) ; Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725–726 (1869); emphasis added). Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith, 221 U. S. 559, 567 (1911) . Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Id., at 580. Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. 383 U. S., at 328–329. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States. 557 U. S., at 203. The Voting Rights Act sharply departs from these basic principles. It suspends “all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C.” Id., at 202. States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, subject of course to any injunction in a §2 action. The Attorney General has 60 days to object to a preclearance request, longer if he requests more information. See 28 CFR §§51.9, 51.37. If a State seeks preclearance from a three-judge court, the process can take years. And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties). While one State waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect immediately, through the normal legislative process. Even if a noncovered jurisdiction is sued, there are important differences between those proceedings and preclearance proceedings; the preclearance proceeding “not only switches the burden of proof to the supplicant jurisdiction, but also applies substantive standards quite different from those governing the rest of the nation.” 679 F. 3d, at 884 (Williams, J., dissenting) (case below). All this explains why, when we first upheld the Act in 1966, we described it as “stringent” and “potent.” Katzenbach, 383 U. S., at 308, 315, 337. We recognized that it “may have been an uncommon exercise of congressional power,” but concluded that “legislative measures not oth-erwise appropriate” could be justified by “exceptional con-ditions.” Id., at 334. We have since noted that the Act “authorizes federal intrusion into sensitive areas of state and local policymaking,” Lopez, 525 U. S., at 282, and represents an “extraordinary departure from the traditional course of relations between the States and the Federal Government,” Presley v. Etowah County Comm’n, 502 U. S. 491 –501 (1992). As we reiterated in Northwest Austin, the Act constitutes “extraordinary legislation otherwise unfamiliar to our federal system.” 557 U. S., at 211. B In 1966, we found these departures from the basic features of our system of government justified. The “blight of racial discrimination in voting” had “infected the electoral process in parts of our country for nearly a century.” Katzenbach, 383 U. S., at 308. Several States had enacted a variety of requirements and tests “specifically designed to prevent” African-Americans from voting. Id., at 310. Case-by-case litigation had proved inadequate to prevent such racial discrimination in voting, in part because States “merely switched to discriminatory devices not covered by the federal decrees,” “enacted difficult new tests,” or simply “defied and evaded court orders.” Id., at 314. Shortly before enactment of the Voting Rights Act, only 19.4 percent of African-Americans of voting age were registered to vote in Alabama, only 31.8 percent in Louisiana, and only 6.4 percent in Mississippi. Id., at 313. Those figures were roughly 50 percentage points or more below the figures for whites. Ibid. In short, we concluded that “[u]nder the compulsion of these unique circumstances, Congress responded in a permissibly decisive manner.” Id., at 334, 335. We also noted then and have emphasized since that this extra-ordinary legislation was intended to be temporary, set to expire after five years. Id., at 333; Northwest Austin, supra, at 199. At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted it—made sense. We found that “Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.” Katzenbach, 383 U. S., at 328. The areas where Congress found “evidence of actual voting discrimination” shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” Id., at 330. We explained that “[t]ests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” Ibid. We therefore concluded that “the coverage formula [was] rational in both practice and theory.” Ibid. It accurately reflected those jurisdictions uniquely characterized by voting discrimination “on a pervasive scale,” linking coverage to the devices used to effectuate discrimination and to the resulting disenfranchisement. Id., at 308. The formula ensured that the “stringent remedies [were] aimed at areas where voting discrimination ha[d] been most flagrant.” Id., at 315. C Nearly 50 years later, things have changed dramati-cally. Shelby County contends that the preclearance re-quirement, even without regard to its disparate coverage, is now unconstitutional. Its arguments have a good deal of force. In the covered jurisdictions, “[v]oter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, 557 U. S., at 202. The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years. See §6, 84Stat. 315; §102, 89Stat. 400. Those conclusions are not ours alone. Congress said the same when it reauthorized the Act in 2006, writing that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices.” §2(b)(1), 120Stat. 577. The House Report elaborated that “the number of African-Americans who are registered and who turn out to cast ballots has increased significantly over the last 40 years, particularly since 1982,” and noted that “[i]n some circumstances, minorities register to vote and cast ballots at levels that surpass those of white voters.” H. R. Rep. No. 109–478, p. 12 (2006). That Report also explained that there have been “significant increases in the number of African-Americans serving in elected offices”; more specifically, there has been approximately a 1,000 percent increase since 1965 in the number of African-American elected officials in the six States originally covered by the Voting Rights Act. Id., at 18. The following chart, compiled from the Senate and House Reports, compares voter registration numbers from 1965 to those from 2004 in the six originally covered States. These are the numbers that were before Congress when it reauthorized the Act in 2006: 1965 2004 White Black Gap White Black Gap Alabama 69.2 19.3 49.9 73.8 72.9 0.9 Georgia 62.[6] 27.4 35.2 63.5 64.2 -0.7 Louisiana 80.5 31.6 48.9 75.1 71.1 4.0 Mississippi 69.9 6.7 63.2 72.3 76.1 -3.8 South Carolina 75.7 37.3 38.4 74.4 71.1 3.3 Virginia 61.1 38.3 22.8 68.2 57.4 10.8 See S. Rep. No. 109–295, p. 11 (2006); H. R. Rep. No. 109–478, at 12. The 2004 figures come from the Census Bureau. Census Bureau data from the most recent election indicate that African-American voter turnout exceeded white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent. See Dept. of Commerce, Census Bureau, Reported Voting and Registration, by Sex, Race and Hispanic Origin, for States (Table 4b). The preclearance statistics are also illuminating. In the first decade after enactment of §5, the Attorney General objected to 14.2 percent of proposed voting changes. H. R Rep. No. 109–478, at 22. In the last decade before reenactment, the Attorney General objected to a mere 0.16 percent. S. Rep. No. 109–295, at 13. There is no doubt that these improvements are in large part because of the Voting Rights Act. The Act has proved immensely successful at redressing racial discrimination and integrating the voting process. See §2(b)(1), 120Stat. 577. During the “Freedom Summer” of 1964, in Philadelphia, Mississippi, three men were murdered while working in the area to register African-American voters. See United States v. Price, 383 U. S. 787, 790 (1966) . On “Bloody Sunday” in 1965, in Selma, Alabama, police beat and used tear gas against hundreds marching in sup- port of African-American enfranchisement. See Northwest Austin, supra, at 220, n. 3 (Thomas, J., concurring in judgment in part and dissenting in part). Today both of those towns are governed by African-American mayors. Problems remain in these States and others, but there is no denying that, due to the Voting Rights Act, our Nation has made great strides. Yet the Act has not eased the restrictions in §5 or narrowed the scope of the coverage formula in §4(b) along the way. Those extraordinary and unprecedented features were reauthorized—as if nothing had changed. In fact, the Act’s unusual remedies have grown even stronger. When Congress reauthorized the Act in 2006, it did so for another 25 years on top of the previous 40—a far cry from the initial five-year period. See 42 U. S. C. §1973b(a)(8). Congress also expanded the prohibitions in §5. We had previously interpreted §5 to prohibit only those redistricting plans that would have the purpose or effect of worsening the position of minority groups. See Bossier II, 528 U. S., at 324, 335–336. In 2006, Congress amended §5 to prohibit laws that could have favored such groups but did not do so because of a discriminatory purpose, see 42 U. S. C. §1973c(c), even though we had stated that such broadening of §5 coverage would “exacerbate the substantial federalism costs that the preclearance procedure already exacts, perhaps to the extent of raising concerns about §5’s constitutionality,” Bossier II, supra, at 336 (citation and internal quotation marks omitted). In addition, Congress expanded §5 to prohibit any voting law “that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States,” on account of race, color, or language minority status, “to elect their preferred candidates of choice.” §1973c(b). In light of those two amendments, the bar that covered jurisdictions must clear has been raised even as the conditions justifying that requirement have dramatically improved. We have also previously highlighted the concern that “the preclearance requirements in one State [might] be unconstitutional in another.” Northwest Austin, 557 U. S., at 203; see Georgia v. Ashcroft, 539 U. S., at 491 (Kennedy, J., concurring) (“considerations of race that would doom a redistricting plan under the Fourteenth Amendment or §2 [of the Voting Rights Act] seem to be what save it under §5”). Nothing has happened since to alleviate this troubling concern about the current application of §5. Respondents do not deny that there have been improvements on the ground, but argue that much of this can be attributed to the deterrent effect of §5, which dissuades covered jurisdictions from engaging in discrimination that they would resume should §5 be struck down. Under this theory, however, §5 would be effectively immune from scrutiny; no matter how “clean” the record of covered jurisdictions, the argument could always be made that it was deterrence that accounted for the good behavior. The provisions of §5 apply only to those jurisdictions singled out by §4. We now consider whether that coverage formula is constitutional in light of current conditions. III A When upholding the constitutionality of the coverage formula in 1966, we concluded that it was “rational in both practice and theory.” Katzenbach, 383 U. S., at 330. The formula looked to cause (discriminatory tests) and ef- fect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both. By 2009, however, we concluded that the “coverage formula raise[d] serious constitutional questions.” Northwest Austin, 557 U. S., at 204. As we explained, a statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” Id., at 203. The coverage formula met that test in 1965, but no longer does so. Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. §6, 84Stat. 315; §102, 89Stat. 400. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. H. R. Rep. No. 109–478, at 12. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. See, e.g., Katzenbach, supra, at 313, 329–330. There is no longer such a disparity. In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were. B The Government’s defense of the formula is limited. First, the Government contends that the formula is “reverse-engineered”: Congress identified the jurisdictions to be covered and then came up with criteria to describe them. Brief for Federal Respondent 48–49. Under that reasoning, there need not be any logical relationship be-tween the criteria in the formula and the reason for coverage; all that is necessary is that the formula happen to capture the jurisdictions Congress wanted to single out. The Government suggests that Katzenbach sanctioned such an approach, but the analysis in Katzenbach was quite different. Katzenbach reasoned that the coverage formula was rational because the “formula . . . was relevant to the problem”: “Tests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” 383 U. S., at 329, 330. Here, by contrast, the Government’s reverse- engineering argument does not even attempt to demonstrate the continued relevance of the formula to the problem it targets. And in the context of a decision as significant as this one—subjecting a disfavored subset of States to “extraordinary legislation otherwise unfamiliar to our federal system,” Northwest Austin, supra, at 211—that failure to establish even relevance is fatal. The Government falls back to the argument that because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States Congress identified back then—regardless of how that discrimination compares to discrimination in States unburdened by coverage. Brief for Federal Respondent 49–50. This argument does not look to “current political conditions,” Northwest Austin, supra, at 203, but instead relies on a comparison between the States in 1965. That comparison reflected the different histories of the North and South. It was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied African-Americans the most basic freedoms, and that state and local governments worked tirelessly to disenfranchise citizens on the basis of race. The Court invoked that history—rightly so—in sustaining the disparate coverage of the Voting Rights Act in 1966. See Katzenbach, supra, at 308 (“The constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects.”). But history did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the “current need[ ]” for a preclearance system that treats States differently from one another today, that history cannot be ignored. During that time, largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers. And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data rel-evant to decades-old problems, rather than current data reflecting current needs. The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future. See Rice v. Cayetano, 528 U. S. 495, 512 (2000) (“Consistent with the design of the Constitution, the [Fifteenth] Amendment is cast in fundamental terms, terms transcending the particular controversy which was the immediate impetus for its enactment.”). To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past. We made that clear in Northwest Austin, and we make it clear again today. C In defending the coverage formula, the Government, the intervenors, and the dissent also rely heavily on data from the record that they claim justify disparate coverage. Congress compiled thousands of pages of evidence before reauthorizing the Voting Rights Act. The court below and the parties have debated what that record shows—they have gone back and forth about whether to compare covered to noncovered jurisdictions as blocks, how to disaggregate the data State by State, how to weigh §2 cases as evidence of ongoing discrimination, and whether to consider evidence not before Congress, among other issues. Compare, e.g., 679 F. 3d, at 873–883 (case below), with id., at 889–902 (Williams, J., dissenting). Regardless of how to look at the record, however, no one can fairly say that it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time. Katzenbach, supra, at 308, 315, 331; Northwest Austin, 557 U. S., at 201. But a more fundamental problem remains: Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day. The dissent relies on “second-generation barriers,” which are not impediments to the casting of ballots, but rather electoral arrangements that affect the weight of minority votes. That does not cure the problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote dilution. We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress. Contrary to the dissent’s contention, see post, at 23, we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today. The dissent also turns to the record to argue that, in light of voting discrimination in Shelby County, the county cannot complain about the provisions that subject it to preclearance. Post, at 23–30. But that is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot complain about that policy, if it turns out his license has expired. Shelby County’s claim is that the coverage formula here is unconstitutional in all its applications, because of how it selects the jurisdictions sub-jected to preclearance. The county was selected based on that formula, and may challenge it in court. D The dissent proceeds from a flawed premise. It quotes the famous sentence from McCulloch v. Maryland, 4 Wheat. 316, 421 (1819), with the following emphasis: “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.” Post, at 9 (emphasis in dissent). But this case is about a part of the sentence that the dissent does not emphasize—the part that asks whether a legislative means is “consist[ent] with the letter and spirit of the constitution.” The dissent states that “[i]t cannot tenably be maintained” that this is an issue with regard to the Voting Rights Act, post, at 9, but four years ago, in an opinion joined by two of today’s dissenters, the Court expressly stated that “[t]he Act’s preclearance requirement and its coverage formula raise serious constitutional questions.” Northwest Austin, supra, at 204. The dissent does not explain how those “serious constitutional questions” became untenable in four short years. The dissent treats the Act as if it were just like any other piece of legislation, but this Court has made clear from the beginning that the Voting Rights Act is far from ordinary. At the risk of repetition, Katzenbach indicated that the Act was “uncommon” and “not otherwise appropriate,” but was justified by “exceptional” and “unique” conditions. 383 U. S., at 334, 335. Multiple decisions since have reaffirmed the Act’s “extraordinary” nature. See, e.g., Northwest Austin, supra, at 211. Yet the dissent goes so far as to suggest instead that the preclearance requirement and disparate treatment of the States should be upheld into the future “unless there [is] no or almost no evidence of unconstitutional action by States.” Post, at 33. In other ways as well, the dissent analyzes the ques- tion presented as if our decision in Northwest Austin never happened. For example, the dissent refuses to con- sider the principle of equal sovereignty, despite Northwest Austin’s emphasis on its significance. Northwest Austin also emphasized the “dramatic” progress since 1965, 557 U. S., at 201, but the dissent describes current levels of discrimination as “flagrant,” “widespread,” and “pervasive,” post, at 7, 17 (internal quotation marks omitted). Despite the fact that Northwest Austin requires an Act’s “disparate geographic coverage” to be “sufficiently related” to its targeted problems, 557 U. S., at 203, the dissent maintains that an Act’s limited coverage actually eases Congress’s burdens, and suggests that a fortuitous relationship should suffice. Although Northwest Austin stated definitively that “current burdens” must be justified by “current needs,” ibid., the dissent argues that the coverage formula can be justified by history, and that the required showing can be weaker on reenactment than when the law was first passed. There is no valid reason to insulate the coverage for-mula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done. * * * Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance. Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions. The judgment of the Court of Appeals is reversed. It is so ordered. Notes 1 Both the Fourteenth and s were at issue in Northwest Austin, see Juris. Statement i, and Brief for Federal Appellee 29–30, in Northwest Austin Municipal Util. Dist. No. One v. Holder, O. T. 2008, No. 08–322, and accordingly Northwest Austin guides our review under both Amendments in this case.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, et al. certiorari to the united states court of appeals for the district of columbia circuit No. 12–96. Argued February 27, 2013—Decided June 25, 2013 The Voting Rights Act of 1965 was enacted to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U.S. 301, 309. Section 2 of the Act, which bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color,” 42 U. S. C. §1973(a), applies nationwide, is permanent, and is not at issue in this case. Other sections apply only to some parts of the country. Section 4 of the Act provides the “coverage formula,” defining the “covered jurisdictions” as States or political subdivisions that maintained tests or devices as prerequisites to voting, and had low voter registration or turnout, in the 1960s and early 1970s. §1973b(b). In those covered jurisdictions, §5 of the Act provides that no change in voting procedures can take effect until approved by specified federal authorities in Washington, D. C. §1973c(a). Such approval is known as “preclearance.” The coverage formula and preclearance requirement were initially set to expire after five years, but the Act has been reauthorized several times. In 2006, the Act was reauthorized for an additional 25 years, but the coverage formula was not changed. Coverage still turned on whether a jurisdiction had a voting test in the 1960s or 1970s, and had low voter registration or turnout at that time. Shortly after the 2006 reauthorization, a Texas utility district sought to bail out from the Act’s coverage and, in the alternative, challenged the Act’s constitutionality. This Court resolved the challenge on statutory grounds, but expressed serious doubts about the Act’s continued constitutionality. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193. Petitioner Shelby County, in the covered jurisdiction of Alabama, sued the Attorney General in Federal District Court in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 are facially unconstitutional, as well as a permanent injunction against their enforcement. The District Court upheld the Act, finding that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing §4(b)’s coverage formula. The D. C. Circuit affirmed. After surveying the evidence in the record, that court accepted Congress’s conclusion that §2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, that §5 was therefore still necessary, and that the coverage formula continued to pass constitutional muster. Held: Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. . (a) In Northwest Austin, this Court noted that the Voting Rights Act “imposes current burdens and must be justified by current needs” and concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” 557 U. S., at 203. These basic principles guide review of the question presented here. . (1) State legislation may not contravene federal law. States retain broad autonomy, however, in structuring their governments and pursuing legislative objectives. Indeed, the Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including “the power to regulate elections.” Gregory v. Ashcroft, 501 U.S. 452, 461–462. There is also a “fundamental principle of equal sovereignty” among the States, which is highly pertinent in assessing disparate treatment of States. Northwest Austin, supra, at 203. The Voting Rights Act sharply departs from these basic principles. It requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties). That is why, in 1966, this Court described the Act as “stringent” and “potent,” Katzenbach, 383 U. S., at 308, 315, 337. The Court nonetheless upheld the Act, concluding that such an “uncommon exercise of congressional power” could be justified by “exceptional conditions.” Id., at 334. . (2) In 1966, these departures were justified by the “blight of racial discrimination in voting” that had “infected the electoral process in parts of our country for nearly a century,” Katzenbach, 383 U. S., at 308. At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted it—made sense. The Act was limited to areas where Congress found “evidence of actual voting discrimination,” and the covered jurisdictions shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” Id., at 330. The Court explained that “[t]ests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” Ibid. The Court therefore concluded that “the coverage formula [was] rational in both practice and theory.” Ibid. . (3) Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, supra, at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased §5’s restrictions or narrowed the scope of §4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger. Because §5 applies only to those jurisdictions singled out by §4, the Court turns to consider that provision. . (b) Section 4’s formula is unconstitutional in light of current conditions. . (1) In 1966, the coverage formula was “rational in both practice and theory.” Katzenbach, supra, at 330. It looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both. By 2009, however, the “coverage formula raise[d] serious constitutional questions.” Northwest Austin, supra, at 204. Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned for over 40 years. And voter registration and turnout numbers in covered States have risen dramatically. In 1965, the States could be divided into those with a recent history of voting tests and low voter registration and turnout and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were. . (2) The Government attempts to defend the formula on grounds that it is “reverse-engineered”—Congress identified the jurisdictions to be covered and then came up with criteria to describe them. Katzenbach did not sanction such an approach, reasoning instead that the coverage formula was rational because the “formula . . . was relevant to the problem.” 383 U. S., at 329, 330. The Government has a fallback argument—because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States identified in 1965. But this does not look to “current political conditions,” Northwest Austin, supra, at 203, instead relying on a comparison between the States in 1965. But history did not end in 1965. In assessing the “current need[ ]” for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. . (3) Respondents also rely heavily on data from the record compiled by Congress before reauthorizing the Act. Regardless of how one looks at that record, no one can fairly say that it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that clearly distinguished the covered jurisdictions from the rest of the Nation in 1965. Katzenbach, supra, at 308, 315, 331. But a more fundamental problem remains: Congress did not use that record to fashion a coverage formula grounded in current conditions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day. . 679 F.3d 848, reversed. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.

Section 5 of the Voting Rights Act of 1965 required States to obtain federal permission before enacting any law related to voting, and §4 of the Act applied that requirement only to some States. In 1965, the covered States included Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. The additional covered subdivisions included 39 counties in North Carolina and one in Arizona. In those States, §4 banned all tests or devices used by covered jurisdictions for the purpose or with the effect of denying or abridging the right to vote on account of race or color. In addition, §5 provided that no change in voting procedures could take effect until it was approved by federal authorities in Washington, D. C., under either the Attorney General or a court of three judges. Subsequently, a Texas utility district brought suit in Federal District Court, seeking a declaratory judgment that §4 and 5 are facially unconstitutional, as well as a permanent injunction against their enforcement. The court upheld the Act, finding that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing the §4(b) coverage formula. The Court of Appeals affirmed. In assessing §5, the court accepted Congress' conclusion that §2 litigation in the covered jurisdictions remained inadequate to protect the rights of minority voters and minority voters, and concluded that §5 was necessary to protect minority rights. However, it rejected the constitutional challenge, concluding that, at the time the Act was reauthorized, only a State or political subdivision was eligible to seek bailout under the statute, and that the utility district was not a political subdivision, a term encompassing only counties, parishes, and voter-registering subunits. Held: The Act imposes current burdens and must be justified by current needs. . (a) While States retain broad autonomy in structuring their governments and pursuing legislative objectives, the Federal Government does not have a general right to review and veto state enactments before they go into effect. Outside the strictures of the Supremacy Clause, States retain great autonomy. In assessing the current need for a preclearance system that treats States differently from one another today, that history cannot be ignored. During that time, largely because of the voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers. But the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data rel-evant to decades-olds problems, rather than current data reflecting current current conditions. Pp. 468 U. S. 744-742. Thus, the Act applies only to those jurisdictions singled out by §4. The Government, the intervenors, and the dissent also rely heavily on data from the record that they claim justify disparate coverage. Congress did not use the record it compiled to shape a coverage formula grounded in current conditions, but instead reenacted a formula based on 40-year-old facts having no logical relation to the present day. It would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. See, e.g., Katzenbach v. Maryland, 4 Wheat. 316, 386. Nothing has happened since to alleviate this troubling concern about the current application of §5. Moreover, Congress could have updated its coverage formula in 2006, but did not do so. Its failure to act leaves this Court with no choice but to declare §4 (b) unconstitutional. This decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2, but may be used as a basis for subjecting jurisdictions to postclearance. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an extraordinary departure from the traditional course of relations between the States. Kaczenbach, supra, at 203. Cf. Northwest Austin Municipal Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221,; Northwest Austin, 557 U.S. 634, 647. To invalidate §4 would be effectively immune from scrutiny, since, no matter how clean the record of covered jurisdictions, the argument could always be made that it was deterrence that accounted for the good behavior. Nor can §5 itself be read as if it was previously enacted, merely because Congress had started from scratch in 2006. Petitioner Shelby County, Alabama, a covered jurisdiction, which has not sought bailout, is not barred from seeking bailout, but, instead, is being held liable for its failure to seek a court order on the basis of current conditions in this case.. 679 F. 3d 848, reversed.

2012_11-8976

https://www.oyez.org/cases/2012/11-8976

. Upon joining a criminal conspiracy, a defendant’s membership in the ongoing unlawful scheme continues until he withdraws. A defendant who withdraws outside the relevant statute-of-limitations period has a complete defense to prosecution. We consider whether, when the defend- ant produces some evidence supporting such a defense, the Government must prove beyond a reasonable doubt that he did not withdraw outside the statute-of-limitations period. I Petitioner Calvin Smith was indicted for crimes connected to his role in an organization that distributed cocaine, crack cocaine, heroin, and marijuana in Washington, D. C., for about a decade. The 158-count indictment charged Smith and 16 alleged co-conspirators with conspiring to run, and actually running, an illegal drug business, as well as with committing acts of violence, including 31 murders, to further their goals. Smith was tried alongside five codefendants. A jury of the United States District Court for the District of Columbia convicted him of (1) conspiracy to distribute narcotics and to possess narcotics with the intent to distribute them, in violation of 21 U. S. C. §846; (2) Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy, in violation of 18 U. S. C. §1962(d); (3) murder in connection with a contin- uing criminal enterprise, in violation of 21 U. S. C. §848(e)(1)(A); and (4) four counts of murder while armed, in violation of D. C. Code §§22–2401 and 22–3202 (1996).[1] At issue here are Smith’s conspiracy convictions. Before trial, Smith moved to dismiss the conspiracy counts as barred by the applicable 5-year statute of limitations, 18 U. S. C. §3282, because he had spent the last six years of the charged conspiracies in prison for a felony conviction. The court denied his motion and Smith renewed his statute-of-limitations defense at trial. In the final jury charge, the court instructed the jury to convict Smith of each conspiracy count if the Government had proved beyond a reasonable doubt that the conspiracies existed, that Smith was a member of those conspiracies, and that the conspiracies “continued in existence within five years” before the indictment. App. 289a, 300a. After it began deliberations, the jury asked the court what to do in the event that a defendant withdrew from the conspiracies outside the relevant limitations period.[2] Smith had not yet raised an affirmative defense of withdrawal, so the court for the first time instructed the jury on the defense. The court explained that “[t]he relevant date for purposes of determining the statute of limitations is the date, if any, on which a conspiracy concludes or a date on which that defendant withdrew from that conspiracy.” Id., at 328a. It defined withdrawal as “affirmative acts inconsistent with the goals of the conspiracy” that “were communicated to the defendant’s coconspirators in a manner reasonably calculated to reach those conspirators.” “Withdrawal,” the court instructed, “must be un- equivocal.” Ibid. Over the defense’s objection, the court told the jury that “[o]nce the government has proven that a defendant was a member of a conspiracy, the burden is on the defendant to prove withdrawal from a conspiracy by a preponderance of the evidence.” Ibid. The jury then convicted Smith of the conspiracy crimes. As relevant here, the Court of Appeals affirmed Smith’s conspiracy convictions. Recognizing that the Circuits are divided on which party bears the burden of proving or dis- proving a defense of withdrawal prior to the limitations period, the court concluded that the defendant bears the burden of proof and that such a disposition does not violate the Due Process Clause. United States v. Moore, 651 F.3d 30, 89–90 (CADC 2011) (per curiam). We granted certiorari. 567 U. S. ___ (2012). II Petitioner’s claim lies at the intersection of a withdrawal defense and a statute-of-limitations defense. He asserts that once he presented evidence that he ended his membership in the conspiracy prior to the statute-of-limitations period, it became the Government’s burden to prove that his individual participation in the conspiracy persisted within the applicable five-year window. This position draws support neither from the Constitution (as discussed in this Part II), nor from the conspiracy and limitations statutes at issue (as discussed in Part III, infra). Establishing individual withdrawal was a burden that rested firmly on the defendant regardless of when the purported withdrawal took place. Allocating to a defendant the burden of proving withdrawal does not violate the Due Process Clause. While the Government must prove beyond a reasonable doubt “every fact necessary to constitute the crime with which [the de- fendant] is charged,” In re Winship, 397 U.S. 358, 364 (1970), “[p]roof of the nonexistence of all affirmative defenses has never been constitutionally required,” Patterson v. New York, 432 U.S. 197, 210 (1977). The State is foreclosed from shifting the burden of proof to the defendant only “when an affirmative defense does negate an element of the crime.” Martin v. Ohio, 480 U.S. 228, 237 (1987) (Powell, J., dissenting). Where instead it “excuse[s] conduct that would otherwise be punishable,” but “does not controvert any of the elements of the offense itself,” the Government has no constitutional duty to overcome the defense beyond a reasonable doubt. Dixon v. United States, 548 U.S. 1, 6 (2006). Withdrawal does not negate an element of the conspir- acy crimes charged here. The essence of conspiracy is “the combination of minds in an unlawful purpose.” United States v. Hirsch, 100 U.S. 33, 34 (1879). To convict a de- fendant of narcotics or RICO conspiracy, the Govern- ment must prove beyond a reasonable doubt that two or more people agreed to commit a crime covered by the specific conspiracy statute (that a conspiracy existed) and that the defendant knowingly and willfully participated in the agreement (that he was a member of the conspiracy).[3] Far from contradicting an element of the offense, withdrawal presupposes that the defendant committed the offense. Withdrawal achieves more modest ends than exoneration. Since conspiracy is a continuing offense, United States v. Kissel, 218 U.S. 601, 610 (1910), a defendant who has joined a conspiracy continues to violate the law “through every moment of [the conspiracy’s] existence,” Hyde v. United States, 225 U.S. 347, 369 (1912), and he becomes responsible for the acts of his co-conspirators in pursuit of their common plot, Pinkerton v. United States, 328 U.S. 640, 646 (1946). Withdrawal terminates the defendant’s liability for postwithdrawal acts of his co-conspirators, but he remains guilty of conspiracy. Withdrawal also starts the clock running on the time within which the defendant may be prosecuted, and provides a complete defense when the withdrawal occurs beyond the applicable statute-of-limitations period.[4] A complete defense, however, is not necessarily one that establishes the defendant’s innocence. For example, we have held that although self-defense may entirely excuse or justify aggravated murder, “the elements of aggravated murder and self-defense [do not] overlap in the sense that evidence to prove the latter will often tend to negate the former.” Martin, supra, at 234; see Leland v. Oregon, 343 U.S. 790, 794–796 (1952) (same for insanity defense). Likewise, although the statute of limitations may inhibit prosecution, it does not render the underlying conduct noncriminal. Commission of the crime within the statute-of-limitations period is not an element of the conspiracy offense. See United States v. Cook, 17 Wall. 168, 180 (1872). The Government need not allege the time of the offense in the indictment, id., at 179–180, and it is up to the defendant to raise the limitations defense, Biddinger v. Commissioner of Police of City of New York, 245 U.S. 128, 135 (1917). A statute-of-limitations defense does not call the criminality of the defendant’s conduct into question, but rather reflects a policy judgment by the legis- lature that the lapse of time may render criminal acts ill suited for prosecution. See, e.g., Toussie v. United States, 397 U.S. 112, 114–115 (1970). Thus, although union of withdrawal with a statute-of-limitations defense can free the defendant of criminal liability, it does not place upon the prosecution a constitutional responsibility to prove that he did not withdraw. As with other affirmative defenses, the burden is on him. III Of course, Congress may choose to assign the Government the burden of proving the nonexistence of withdrawal, even if that is not constitutionally required. It did not do so here. “[T]he common-law rule was that affirmative defenses . . . were matters for the defendant to prove.” Martin, supra, at 235; see 4 W. Blackstone, Commentaries on the Laws of England 201 (1769). Because Congress did not address in 21 U. S. C. §846 or 18 U. S. C. §1962(d) the burden of proof for withdrawal, we presume that Con- gress intended to preserve the common-law rule. Dixon, 548 U. S., at 13–14. That Congress left the traditional burden of proof undisturbed is both practical and fair. “ ‘[W]here the facts with regard to an issue lie peculiarly in the knowledge of a party,’ ” that party is best situated to bear the burden of proof. Id., at 9. On the matter of withdrawal, the in- formational asymmetry heavily favors the defendant. Pas- sive nonparticipation in the continuing scheme is not enough to sever the meeting of minds that constitutes the conspiracy. “[T]o avert a continuing criminality” there must be “affirmative action . . . to disavow or defeat the purpose” of the conspiracy. Hyde, supra, at 369. The defendant knows what steps, if any, he took to dissociate from his confederates. He can testify to his act of withdrawal or direct the court to other evidence substantiating his claim.[5] It would be nearly impossible for the Gov- ernment to prove the negative that an act of with- drawal never happened. See 9 J. Wigmore, Evidence §2486, p. 288 (J. Chadbourn rev. 1981) (“It is often said that the burden is upon the party having in form the affirmative allegation”). Witnesses with the primary power to refute a withdrawal defense will often be beyond the Government’s reach: The defendant’s co-conspirators are likely to invoke their right against self-incrimination rather than explain their unlawful association with him. Here again, the analysis does not change when withdrawal is the basis for a statute-of-limitations defense. To be sure, we have held that the Government must prove the time of the conspiracy offense if a statute-of-limitations defense is raised. Grunewald v. United States, 353 U.S. 391, 396 (1957). But the Government satisfied that burden here when it proved that the conspiracy continued past the statute-of-limitations period. For the offense in these conspiracy prosecutions was not the initial act of agreement, but the banding-together against the law effected by that act, which continues until termination of the conspiracy or, as to a particular defendant, until that defendant’s withdrawal. And as we have discussed, the burden of establishing that withdrawal rests upon the defendant. Petitioner’s claim that assertion of a statute-of-limitations defense shifts that burden is incompatible with the established proposition that a defendant’s membership in the conspiracy, and his responsibility for its acts, endures even if he is entirely inactive after joining it. (“As he has started evil forces he must withdraw his support from them or incur the guilt of their continuance.” Hyde, 225 U. S., at 369–370.) For as a practical matter, the only way the Government would be able to establish a failure to withdraw would be to show active participation in the conspiracy during the limitations period. * * * Having joined forces to achieve collectively more evil than he could accomplish alone, Smith tied his fate to that of the group. His individual change of heart (assuming it occurred) could not put the conspiracy genie back in the bottle. We punish him for the havoc wreaked by the unlawful scheme, whether or not he remained actively involved. It is his withdrawal that must be active, and it was his burden to show that. The judgment of the Court of Appeals is affirmed. It is so ordered. Notes 1 On appeal, the D. C. Circuit remanded two of the murder counts for the District Court to conduct an evidentiary hearing regarding whether Smith received ineffective assistance of counsel as to those convictions. United States v. Moore, 651 F.3d 30, 89 (2011) (per curiam). 2 The note to the judge inquired: “ ‘If we find that the Narcotics or RICO conspiracies continued after the relevant date under the statute of limitations, but that a particular defendant left the conspiracy before the relevant date under the statute of limitations, must we find that defendant not guilty? ’ ” App. 174a. 3 Narcotics conspiracy under 21 U. S. C. §846 criminalizes “con-spir[ing] to commit any offense” under the Controlled SubstancesAct, including the knowing distribution of, or possession with intent to distribute, controlled substances, §841(a)(1). Section 1962(d) of Title 18 makes it unlawful to “conspire to violate” RICO, which makes it unlawful, among other things, “for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity,” §1962(c). 4 The conspiracy statutes at issue here do not contain their own limitations periods, but are governed by §3282(a), which provides: “Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” At the time petitioner was in-dicted, §3282 contained no subsections; what was the full text of the sec-tion is now subsection (a). 5 Here, Smith introduced a stipulation of his dates spent incarcerated, as well as “testimonial evidence showing that he was no longer a member of the charged conspiracies during his incarceration.” Brief for Petitioner 3. The jury found that this did not establish by a preponderance of the evidence an affirmative act of withdrawal.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SMITH v. UNITED STATES certiorari to the united states court of appeals for the district of columbia circuit No. 11–8976. Argued November 6, 2012—Decided January 9, 2013 Petitioner Smith claimed that conspiracy charges brought against him for his role in an illegal drug business, see 21 U. S. C. §846 and 18 U. S. C. §1962(d), were barred by 18 U. S. C. §3282’s 5-year statute of limitations. The District Court instructed the jury to convict Smith of each conspiracy count if the Government had proved beyond a reasonable doubt that the conspiracies existed, that Smith was a member of those conspiracies, and that the conspiracies continued within the applicable statute-of-limitations period. As to the affirmative defense of withdrawal from the conspiracy, the court instructed the jury that once the Government proved that Smith was a member of the conspiracy, Smith had the burden to prove withdrawal outside the statute of limitations by a preponderance of the evidence. Smith was convicted, and the D. C. Circuit affirmed. Held: A defendant bears the burden of proving a defense of withdrawal. . (a) Allocating to the defendant the burden of proving withdrawal does not violate the Due Process Clause. Unless an affirmative defense negates an element of the crime, the Government has no constitutional duty to overcome the defense beyond a reasonable doubt. See Dixon v. United States, 548 U.S. 1, 6. Withdrawal does not negate an element of the conspiracy crimes charged here, but instead presupposes that the defendant committed the offense. Withdrawal terminates a defendant’s liability for his co-conspirators’ postwithdrawal acts, but he remains guilty of conspiracy. Withdrawal that occurs beyond the statute-of-limitations period provides a complete defense to prosecution, but does not render the underlying conduct noncriminal. Thus, while union of withdrawal with a statute-of-limitations defense can free a defendant of criminal liability, it does not place upon the prosecution a constitutional responsibility to prove that he did not withdraw. As with other affirmative defenses, the burden is on him. . (b) Although Congress may assign the Government the burden of proving the nonexistence of withdrawal, it did not do so here. Because Congress did not address the burden of proof for withdrawal in 21 U. S. C. §846 or 18 U. S. C. §1962(d), it is presumed that Congress intended to preserve the common-law rule that affirmative defenses are for the defendant to prove. Dixon, supra, at 13–14. The analysis does not change when withdrawal is the basis for a statute-of-limitations defense. In that circumstance, the Government need only prove that the conspiracy continued past the statute-of-limitations period. A conspiracy continues until it is terminated or, as to a particular defendant, until that defendant withdraws. And the burden of establishing withdrawal rests upon the defendant. . 651 F.3d 30, affirmed. Scalia, J., delivered the opinion for a unanimous Court.

Petitioner Smith was indicted for crimes connected to his role in an organization that distributed cocaine, crack cocaine, heroin, and marijuana in Washington, D. C., for about a decade. The indictment charged him and 16 alleged co-conspirators with conspiring to run, and actually running, an illegal drug business, as well as with committing acts of violence, including 31 murders, to further their goals. Before trial, Smith moved to dismiss the conspiracy counts as barred by the applicable 5-year statute of limitations because he had spent the last six years of the charged conspiracies in prison for a felony conviction. The court denied his motion and, in the final jury charge, instructed the jury to convict Smith of each conspiracy count if the Government had proved beyond a reasonable doubt that the conspiracies existed, that Smith was a member of those conspiracies, and that they continued in existence within five years before the indictment. The jury then convicted Smith of the conspiracy crimes. The Court of Appeals affirmed Smith's conspiracy convictions, holding that the defendant bears the burden of proof and that such a disposition does not violate the Due Process Clause. Held: When the defend- ant produces some evidence supporting a defense of withdrawal prior to the applicable limitations period, the Government must prove beyond reasonable doubt, regardless of whether the withdrawal took place in the five-year window. . (a) While withdrawal does not negate an element of the conspir- acy crimes charged here, withdrawal presupposes that a defendant committed the offense. To convict a de- fendant of a narcotics or RICO conspiracy, a defendant who has joined a conspiracy continues to violate the law through every moment of that conspiracy, and he becomes responsible for the acts of his co- conspirators in pursuit of their common plot. Withdrawal also starts the clock running on the time within which the defendant may be prosecuted, and provides a complete defense when the withdrawal occurs beyond the applicable statute-of-limitations period. A complete defense is not necessarily one that establishes the defendant's innocence, but rather reflects a policy judgment by the legis- lature that the lapse of time may render criminal acts ill suited for prosecution. Thus, the only way the Government would be able to establish a failure to withdraw would be to show active participation in the conspiracy during the limitations period.. (b) The offense in these conspiracy prosecutions was not the initial act of agreement, but the banding-together against the law effected by that act, which continues until termination of the conspiracy or, as to a particular defendant, until that defendant's withdrawal. It was his withdrawal that must be active, and it was his burden to show that. P.. (c) On the matter of withdrawal, the in- formational asymmetry heavily favors the defendant. Pasive nonparticipation in the continuing scheme is not enough to sever the meeting of minds that constitutes the conspiracy, but must be affirmed. And the defendant knows what steps, if any, he took to dissociate from his confederates. He can testify to his withdrawal act or direct the court to other evidence substantiating his claim. Moreover, it would be nearly impossible for the Gov- ernment to prove the negative that an act of with- drawal never happened, since witnesses with the primary power to refute a withdrawal defense will often be beyond the Government's reach: The defendant is likely to invoke their right against self-incrimination, rather than explain their unlawful association with him. As a practical matter, the best way a Government can establish a §3282(a)-limitations failure would be the showing of active participation by the defendant during the period of limitations. Having joined forces to achieve collectively more evil than he could accomplish alone, Smith tied his fate to that of the group. His individual change of heart (assuming it occurred) could not put the conspiracy genie back in the bottle, but it must be shown that he remained actively involved. Because Congress did not assign the affirmative burden of proving the affirmative withdrawal defense to the defendant, it did not presume that Con- gress intended to preserve the common-law rule. That Congress left the traditional burden of proof undisturbed is both practical and fair.. 651 F.3d 30, affirmed. JUSTICE WHITE, joined by JUSTICE BLACKMUN, JUSTICE REHNQUIST, and JUSTICE O'CONNOR, concluded in Part III that: 1. When a defendant withdraws from a criminal conspiracy, he has a constitutional responsibility to prove that he did not withdraw from the conspiracy before the applicable limitation period, and the Government has no constitutional duty to overcome such a defense beyond reasonable doubt. Dixon v. United States, 548 U.S. 1, 6. 2. The defense offered by Smith in his withdrawal defense did not establish by a preponderance of the evidence an affirmative act of withdrawal within the applicable period. Pp.

2012_11-1450

https://www.oyez.org/cases/2012/11-1450

. The Class Action Fairness Act of 2005 (CAFA) provides that the federal “district courts shall have original jurisdiction” over a civil “class action” if, among other things, the “matter in controversy exceeds the sum or value of $5,000,000.” 28 U. S. C. §§1332(d)(2), (5). The statute adds that “to determine whether the matter in controversy exceeds the sum or value of $5,000,000,” the “claims of the individual class members shall be aggregated.” §1332(d)(6). The question presented concerns a class-action plaintiff who stipulates, prior to certification of the class, that he, and the class he seeks to represent, will not seek damages that exceed $5 million in total. Does that stipulation remove the case from CAFA’s scope? In our view, it does not. I In April 2011 respondent, Greg Knowles, filed this proposed class action in an Arkansas state court against petitioner, the Standard Fire Insurance Company. Knowles claimed that, when the company had made certain homeowner’s insurance loss payments, it had un-lawfully failed to include a general contractor fee. And Knowles sought to certify a class of “hundreds, and pos-sibly thousands” of similarly harmed Arkansas policyholders. App. to Pet. for Cert. 66. In describing the relief sought, the complaint says that the “Plaintiff and Class stipulate they will seek to recover total aggregate damages of less than five million dollars.” Id., at 60. An attached affidavit stipulates that Knowles “will not at any time during this case . . . seek damages for the class . . . in excess of $5,000,000 in the aggregate.” Id., at 75. On May 18, 2011, the company, pointing to CAFA’s jurisdictional provision, removed the case to Federal District Court. See 28 U. S. C. §1332(d); §1453. Knowles argued for remand on the ground that the District Court lacked jurisdiction. He claimed that the “sum or value” of the “amount in controversy” fell beneath the $5 million threshold. App. to Pet. for Cert. 2. On the basis of evidence presented by the company, the District Court found that that the “sum or value” of the “amount in contro-versy” would, in the absence of the stipulation, have fallen just above the $5 million threshold. Id., at 2, 8. Nonetheless, in light of Knowles’ stipulation, the court concluded that the amount fell beneath the threshold. The court con-sequently ordered the case remanded to the state court. Id., at 15. The company appealed from the remand order, but the Eighth Circuit declined to hear the appeal. Id., at 1. See 28 U. S. C. §1453(c)(1) (2006 ed., Supp. V) (providing discretion to hear an appeal from a remand order). The company petitioned for a writ of certiorari. And, in light of divergent views in the lower courts, we granted the writ. Compare Frederick v. Hartford Underwriters Ins. Co., 683 F.3d 1242, 1247 (CA10 2012) (a proposed class-action representative’s “attempt to limit damages in the complaint is not dispositive when determining the amount in controversy”); with Rolwing v. Nestle Holdings, Inc., 666 F.3d 1069, 1072 (CA8 2012) (a precertification “binding stipulation limiting damages sought to an amount not exceeding $5 million can be used to defeat CAFA jurisdiction”). II CAFA provides the federal district courts with “original jurisdiction” to hear a “class action” if the class has more than 100 members, the parties are minimally diverse, and the “matter in controversy exceeds the sum or value of $5,000,000.” 28 U. S. C. §§1332(d)(2), (5)(B). To “determine whether the matter in controversy” exceeds that sum, “the claims of the individual class members shall be aggregated.” §1332(d)(6). And those “class members” include “persons (named or unnamed) who fall within the definition of the proposed or certified class.” §1332(d) (1)(D) (emphasis added). As applied here, the statute tells the District Court to determine whether it has jurisdiction by adding up the value of the claim of each person who falls within the definition of Knowles’ proposed class and determine whether the resulting sum exceeds $5 million. If so, there is jurisdiction and the court may proceed with the case. The District Court in this case found that resulting sum would have exceeded $5 million but for the stipulation. And we must decide whether the stipulation makes a critical difference. In our view, it does not. Our reason is a simple one: Stipulations must be binding. See 9 J. Wigmore, Evidence §2588, p. 821 (J. Chadbourn rev. 1981) (defining a “judicial admission or stipulation” as an “express waiver made . . . by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact” (emphasis deleted)); Christian Legal Soc. Chapter of Univ. of Cal., Hast- ings College of Law v. Martinez, 561 U. S. ___, ___ (2010) (slip op., at 10) (describing a stipulation as “ ‘binding and conclusive’ ” and “ ‘not subject to subsequent variation’ ” (quoting 83 C. J. S., Stipulations §93 (2000))); 9 Wigmore, supra, §2590, at 822 (the “vital feature” of a judicial admission is “universally conceded to be its conclusiveness upon the party making it”). The stipulation Knowles prof-fered to the District Court, however, does not speak for those he purports to represent. That is because a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified. See Smith v. Bayer Corp., 564 U. S. ___, ___ (2011) (slip op., at 15) (“Neither a proposed class action nor a rejected class action may bind nonparties”); id., at ___ (slip op., at 13) (“ ‘[A] nonnamed class member is [not] a party to the class-action litigation before the class is certified’ ” (quoting Devlin v. Scardelletti, 536 U.S. 1, 16, n. 1 (2002) (Scalia, J., dissenting))); Brief for Respondent 12 (conceding that “a damages limitation . . . cannot have a binding effect on the merits of absent class members’ claims unless and until the class is certified”). Because his precertification stipulation does not bind anyone but himself, Knowles has not reduced the value of the putative class members’ claims. For jurisdictional purposes, our inquiry is limited to examining the case “as of the time it was filed in state court,” Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 390 (1998). At that point, Knowles lacked the authority to concede the amount-in-controversy issue for the absent class members. The Federal District Court, therefore, wrongly concluded that Knowles’ precertification stipulation could overcome its finding that the CAFA jurisdictional threshold had been met. Knowles concedes that “[f]ederal jurisdiction cannot be based on contingent future events.” Brief for Respondent 20. Yet the two legal principles to which we have just referred—that stipulations must be binding and that a named plaintiff cannot bind precertification class members—mean that the amount to which Knowles has stipulated is in effect contingent. If, for example, as Knowles’ complaint asserts, “hundreds, and possibly thousands” of persons in Arkansas have similar claims, App. to Pet. for Cert. 66, and if each of those claims places a significant sum in controversy, the state court might certify the class and permit the case to proceed, but only on the condition that the stipulation be excised. Or a court might find that Knowles is an inadequate representative due to the artificial cap he purports to impose on the class’ recovery. E.g., Back Doctors Ltd. v. Metropolitan Property & Cas. Ins. Co., 637 F.3d 827, 830–831 (CA7 2011) (noting a class representative’s fiduciary duty not to “throw away what could be a major component of the class’s recovery”). Similarly, another class mem- ber could intervene with an amended complaint (without a stipulation), and the District Court might permit the action to proceed with a new representative. See 5 A. Conte & H. Newberg, Class Actions §16:7, p. 154 (4th ed. 2002) (“[M]embers of a class have a right to intervene if their interests are not adequately represented by existing parties”). Even were these possibilities remote in Knowles’ own case, there is no reason to think them farfetched in other cases where similar stipulations could have more dramatic amount-lowering effects. The strongest counterargument, we believe, takes a syl-logistic form: First, this complaint contains a presently nonbinding stipulation that the class will seek damages that amount to less than $5 million. Second, if the state court eventually certifies that class, the stipulation will bind those who choose to remain as class members. Third, if the state court eventually insists upon modification of the stipulation (thereby permitting class members to obtain more than $5 million), it will have in effect created a new, different case. Fourth, CAFA, however, permits the federal court to consider only the complaint that the plaintiff has filed, i.e., this complaint, not a new, modified (or amended) complaint that might eventually emerge. Our problem with this argument lies in its conclusion. We do not agree that CAFA forbids the federal court to consider, for purposes of determining the amount in controversy, the very real possibility that a nonbinding, amount-limiting, stipulation may not survive the class certification process. This potential outcome does not re-sult in the creation of a new case not now before the federal court. To hold otherwise would, for CAFA jurisdictional purposes, treat a nonbinding stipulation as if it were binding, exalt form over substance, and run directly counter to CAFA’s primary objective: ensuring “Federal court consideration of interstate cases of national impor-tance.” §2(b)(2), 119Stat. 5. It would also have the ef- fect of allowing the subdivision of a $100 million action into 21 just-below-$5-million state-court actions simply by including nonbinding stipulations; such an outcome would squarely conflict with the statute’s objective. We agree with Knowles that a federal district court might find it simpler to value the amount in controversy on the basis of a stipulation than to aggregate the value of the individual claims of all who meet the class description. We also agree that, when judges must decide jurisdictional matters, simplicity is a virtue. See Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). But to ignore a nonbinding stipulation does no more than require the federal judge to do what she must do in cases without a stipulation and what the statute requires, namely “aggregat[e]” the “claims of the individual class members.” 28 U. S. C. §1332(d)(6). Knowles also points out that federal courts permit individual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and to obtain a remand to state court, by stipulating to amounts at issue that fall below the federal jurisdictional requirement. That is so. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 294 (1938) (“If [a plaintiff] does not desire to try his case in the federal court he may resort to the expedi-ent of suing for less than the jurisdictional amount, and though he would be justly entitled to more, the defendant cannot remove”). But the key characteristic about those stipulations is that they are legally binding on all plaintiffs. See 14AA C. Wright, A. Miller, & E. Cooper, Fed-eral Practice and Procedure §3702.1, p. 335 (4th ed. 2011) (federal court, as condition for remand, can insist on a “binding affidavit or stipulation that the plaintiff will continue to claim less than the jurisdictional amount” (em-phasis added)). That essential feature is missing here, as Knowles cannot yet bind the absent class. Knowles argues in the alternative that a stipulation is binding to the extent it limits attorney’s fees so that the amount in controversy remains below the CAFA threshold. We do not consider this issue because Knowles’ stipulation did not provide for that option. In sum, the stipulation at issue here can tie Knowles’ hands, but it does not resolve the amount-in-controversy question in light of his inability to bind the rest of the class. For this reason, we believe the District Court, when following the statute to aggregate the proposed class members’ claims, should have ignored that stipulation. Because it did not, we vacate the judgment below and remand the case for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus STANDARD FIRE INSURANCE CO. v. KNOWLES certiorari to the united states court of appeals for the eighth circuit No. 11–1450. Argued January 7, 2013—Decided March 19, 2013 The Class Action Fairness Act of 2005 (CAFA) gives federal district courts original jurisdiction over class actions in which, among other things, the matter in controversy exceeds $5 million in sum or value, 28 U. S. C. §§1332(d)(2), (5), and provides that to determine whether a matter exceeds that amount the “claims of the individual class members must be aggregated,” §1332(d)(6). When respondent Knowles filed a proposed class action in Arkansas state court against petitioner Standard Fire Insurance Company, he stipulated that he and the class would seek less than $5 million in damages. Pointing to CAFA, petitioner removed the case to the Federal District Court, but it remanded to the state court, concluding that the amount in controversy fell below the CAFA threshold in light of Knowles’ stipulation, even though it found that the amount would have fallen above the threshold absent the stipulation. The Eighth Circuit declined to hear petitioner’s appeal. Held: Knowles’ stipulation does not defeat federal jurisdiction under CAFA. Pp. 3−7. (a) Here, the precertification stipulation can tie Knowles’ hands because stipulations are binding on the party who makes them, see Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U. S. ___. However, the stipulation does not speak for those Knowles purports to represent, for a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified. See Smith v. Bayer Corp., 564 U. S. ___, ___. Because Knowles lacked authority to concede the amount in controversy for absent class members, the District Court wrongly concluded that his stipulation could overcome its finding that the CAFA jurisdictional threshold had been met. Pp. 3−4. (b) Knowles concedes that federal jurisdiction cannot be based on contingent future events. Yet, because a stipulation must be binding and a named plaintiff cannot bind precertification class members, the amount he stipulated is in effect contingent. CAFA does not forbid a federal court to consider the possibility that a nonbinding, amount-limiting, stipulation may not survive the class certification process. To hold otherwise would, for CAFA jurisdictional purposes, treat a nonbinding stipulation as if it were binding, exalt form over substance, and run counter to CAFA’s objective: ensuring “Federal court consideration of interstate cases of national importance.” §2(b)(2), 119Stat. 5. It may be simpler for a federal district court to value the amount in controversy on the basis of a stipulation, but ignoring a nonbinding stipulation merely requires the federal judge to do what she must do in cases with no stipulation: aggregate the individual class members’ claims. While individual plaintiffs may avoid removal to federal court by stipulating to amounts that fall below the federal jurisdictional threshold, the key characteristic of such stipulations—missing here—is that they are legally binding on all plaintiffs. Pp. 4−7. Vacated and remanded. Breyer, J., delivered the opinion for a unanimous Court.

The Class Action Fairness Act of 2005 (CAFA) provides that federal district courts shall have original jurisdiction over a civil class action if, inter alia, the amount in controversy exceeds the sum or value of $5,000,000. The statute also provides that, to determine whether the matter in controversy exceeding $5 million, the claims of the individual class members shall be aggregated. Respondent filed a proposed class action in an Arkansas state court against petitioner, claiming that, when petitioner had made certain homeowner's insurance loss payments, it had unlawfully failed to include a general contractor fee. And respondent sought to certify a class of potentially thousands of similarly harmed Arkansas policyholders. On May 18, 2011, the company removed the case to Federal District Court, and argued for remand on the ground that the District Court lacked jurisdiction. On the basis of evidence presented by respondent, the court found that, in the absence of a stipulation that respondent would not seek damages for the class in excess of that amount, but, in light of respondent's stipulation, that amount fell beneath the threshold. The court con-sequently ordered the case remanded to the state court. The company appealed from the remand order, but the Court of Appeals declined to hear the appeal. Held: The stipulation does not remove the case from the CAFA scope. . (a) Stipulations must be binding. That is, a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified. Because his precertification stipulation does not bind anyone but himself, respondent has not reduced the value of the putative class members' claims. For jurisdictional purposes, the inquiry is limited to examining the case as of the time it was filed in state court, but at that point, respondent lacked the authority to concede the amount-in-controversy issue for the absent class members. Cf. Frederick v. Hartford Underwriters Ins. Co., 683 F.3d 1242,; Rolwing v. Nestle Holdings, Inc., 666 F. 3d 1069, 1072 (CA8 2012). Moreover, the two legal principles to which this Court has referred mean that the amount to which respondent has stipulated is contingent on contingent future events. If, for example, hundreds, and possibly thousands, of persons in Arkansas have similar claims, and if each of those claims places a significant sum in controversy, a state court might certify the class and permit it to proceed, but only on the condition that the stipulation be excised. Or a court might find that respondent is an inadequate representative due to the artificial cap he purports to impose on the class recovery recovery. Similarly, a class representative could intervene with the fiduciary component of a class action, and intervene with a class plaintiff represented by his right to intervene with his existing interests. Even if the parties were not represented by their existing interests, there is no reason to think them farfetched in other cases where similar stipulations could have more dramatic amount-lowering effects. To hold otherwise would, for CAFA jurisdictional purpose, treat a nonbinding stipulation as if it were binding, exalt form over substance, and run directly counter to CAFA primary objective of ensuring federal court consideration of interstate cases of national impor-tance. It would also have the ef- fect of allowing the subdivision of a $100 million action into 21 just-below-$5-million state-court actions simply by including nonbinding stipulations, such an outcome would squarely conflict with the statute, and would also conflict with CAFA regulation. While a federal district court might prefer it simpler to value the amount of the controversy on the basis of a stipulation than to aggregate the individual claims of all who meet the class description, the simplicity of jurisdictional matters is a virtue. And federal courts permit individual plaintiffs, who are masters of their complaints, to avoid removal to federal court, and to obtain a remand to state court by stipulating to amounts at issue that fall below the federal jurisdictional requirement. That is so. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 294. The key characteristic about such stipulations is that they are legally binding on all plaintiffs, and, if federal court insist on a binding affidavit or stipulation of the plaintiff to limit damages, it will have in effect created a new, different case. Although individual plaintiffs may be permitted, as §1332(d)(6) of the Act permits, by stipulation to amounts in controversy that are below the Federal jurisdictional requirements, that is so, that they may not be removed to federal or state courts, and that federal courts may stipulate to amounts that do not fall below their jurisdictional bar. Here, respondent did not bind the class members, but instead chose to

2012_11-889

https://www.oyez.org/cases/2012/11-889

. The Red River Compact, (or Compact), 94Stat. 3305, allocates water rights among the States within the Red River basin as it winds through Texas, Oklahoma, Arkansas, and Louisiana. Petitioner Tarrant Regional Water District (Tarrant), a Texas agency, claims that it is entitled to acquire water under the Compact from within Oklahoma and that therefore the Compact pre-empts several Oklahoma statutes that restrict out-of-state diversions of water. In the alternative, Tarrant argues that the Oklahoma laws are unconstitutional restrictions on interstate commerce. We hold that Tarrant’s claims lack merit. I A The Red River (or River) begins in the Llano Estacado Mesa on the border between New Mexico and Texas. From this broad plain, it first runs through the Texas Panhandle and then marks the border between Texas and Oklahoma. It continues in an easterly direction until it reaches the shared border with Arkansas. Once the River enters Arkansas, it turns southward and flows into Louisiana, where it empties into the Mississippi and Atchafalaya Rivers. As an important geographic feature of this region, the Red River has lent its name to a valley, a Civil War campaign, and a famed college football rivalry between the Longhorns of Texas and the Sooners of Oklahoma. But college pride has not been the only source of controversy between Texas and Oklahoma regarding the Red River. The River has been the cause of numerous historical conflicts between the two States, leading to a mobilization of their militias at one time, Oklahoma v. Texas, 258 U.S. 574, 580 (1922), and the declaration of martial law along a stretch of the River by Oklahoma Governor “Alfalfa Bill” Murray at another, see Okla. H. Res. 1121, 50th Legislature, 2d Sess. (2006) (resolution commemorating “Alfalfa Bill” Murray’s actions during the “Red River Bridge War”). Such disputes over the River and its waters are a natural result of the River’s distribution of water flows. The River’s course means that upstream States like Oklahoma and Texas may appropriate substantial amounts of water from both the River and its tributaries to the disadvantage of downstream States like Arkansas and especially Lou-isiana, which lacks sufficiently large reservoirs to store water. Absent an agreement among the States, disputes over the allocation of water are subject to equitable apportionment by the courts, Arizona v. California, 460 U.S. 605, 609 (1983), which often results in protracted and costly legal proceedings. Thus in 1955, to forestall future disputes over the River and its water, Congress authorized the States of Arkansas, Louisiana, Oklahoma, and Texas to negotiate a compact to apportion the water of the Red River basin among themselves. See Act of Aug. 11, 1955, Pub. L. 346, 69Stat. 654. These negotiations lasted over 20 years and finally culminated in the signing of the Red River Compact in 1978. Congress approved the Compact in 1980, transforming it into federal law. See Act of Dec. 22, 1980, 94Stat. 3305; Compact, 1 App. 7–51. One of the Compact’s principal purposes was “[t]o provide an equitable apportionment among the Signatory States of the water of the Red River and its tributaries.” §1.01(b), id., at 9. The Compact governs the allocation of water along the Red River and its tributaries from the New Mexico and Texas border to its terminus in Louisiana. §§2.12(a)–(e), id., at 13. This stretch is divided into five separate subdivisions called “Reach[es],” ibid., each of which is further divided into smaller “subbasins,” see, e.g., §§5.01–5.05, id., at 22–26 (describing subbasins 1 through 5 of Reach II). (See Appendix A, infra, for a map.) At issue in this case are rights under the Compact to water located in Oklahoma’s portion of subbasin 5 of Reach II, which occupies “that portion of the Red River, together with its tributaries, from Denison Dam down to the Arkansas-Louisiana state boundary, excluding all tributaries included in the other four subbasins of Reach II.” §5.05(a), 1 App. 24–25. (See Appendix B, infra, for a map.) The Compact’s interpretive comments[1] explain that during negotiations, Reach II posed the greatest difficulty to the parties’ efforts to reach agreement. Comment on Art. V, 1 App. 27. The problem was that Louisiana, the farthest downstream State, lacks suitable reservoir sites and therefore cannot store water during high flow periods to meet its future needs. The upstream States (Texas, Oklahoma, and Arkansas), which control the River’s flow, were unwilling to release water stored within their own reservoirs for the benefit of any downstream States, like Louisiana. Without any such release, there would be no guaranteed flow of water to Louisiana. The provisions of the Compact relating to Reach II were crafted to address this problem. To this end, Reach II was divided into five subbasins. The upstream subbasins, numbered 1 through 4, were drawn to end at “existing, authorized or proposed last downstream major damsites,” see, e.g., §5.01(a), id., at 22, on the tributaries leading to the Red River before reaching the main stem of the River. These dams allow the parties managing them to control water along the tributaries before it travels farther downstream and joins the flow of the main stem of the River. For the most part, the Compact granted control over the water in these subbasins to the States in which each subbasin is located.[2] The remaining subbasin, subbasin 5, instead requires that water be allowed to flow to Louisiana through the main stem of the River at certain minimum levels, assuring Louisiana an allocation of the River’s waters and solving its flowthrough problem. The provision of the Compact central to the present dispute is §5.05(b)(1), which sets the following allocation during times of normal flow: “(1) The Signatory States shall have equal rights to the use of runoff originating in subbasin 5 and undesignated water flowing into subbasin 5, so long as the flow of the Red River at the Arkansas-Louisiana state boundary is 3,000 cubic feet per second [hereinafter CFS] or more, provided no state is entitled to more than 25 percent of the water in excess of 3,000 [CFS].”[3] Id., at 25. In these normal circumstances (i.e., when flows at the Arkansas-Louisiana border are above 3,000 CFS), this provision and its interpretive comment make clear that “all states are free to use whatever amount of water they can put to beneficial use.” Comment on Art. V, id., at 30. But if the amount of water above 3,000 CFS cannot satisfy all such uses, then “each state will honor the other’s right to 25% of the excess flow.” Ibid. However, when the flow of the River diminishes at the Arkansas-Louisiana border, the upstream States must permit more water to reach Louisiana.[4] Subbasin 5’s allocation scheme allows upstream States to keep the water that they have stored, but also ensures that Louisiana will receive a steady supply of water from the Red River, with each upstream State contributing during times of low flow. To ensure that its apportionments are honored, the Compact includes an accounting provision, but an accounting is not mandatory “until one or more affected states deem the accounting necessary.” §2.11, id., at 13; see Comment on Art. II, id., at 15–16. This is because the “extensive gaging and record keeping required” to carry out such an accounting would impose “a significant financial burden on the involved states.” Id., at 16. Given these costs, the signatory States did “not envisio[n] that it w[ould] be undertaken as a routine matter.” Ibid. Indeed, it appears that no State has ever asked for such an accounting in the Compact’s history. See Brief for Respondents 45; Reply Brief 11–12. While the Compact allocates water rights among its signatories, it also provides that it should not “be deemed to . . . [i]nterfere with or impair the right or power of any Signatory State to regulate within its boundaries the appropriation, use, and control of water, or quality of water, not inconsistent with its obligations under this Compact.” §2.10, 1 App. 12. Rather, “[s]ubject to the general constraints of water availability and the apportionment of the Compact, each state [remains] free to continue its existing internal water administration.” Comment on Art. II, id., at 14. Even during periods of water shortage, “no attempt is made to specify the steps that will be taken [by States to ensure water deliveries]; it is left to the state’s internal water administration.” Ibid. B In the years since the Red River Compact was ratified by Congress, the region’s population has increased dramatically. In particular, the population of the Dallas-Fort Worth metropolitan area in north Texas has grown from roughly 5.1 million inhabitants in 2000 to almost 6.4 million in 2010, a jump of over 23 percent and among the largest in the United States during this period. See Dept. of Commerce, Census Bureau, P. Mackun & S. Wilson, Population Distribution and Change: 2000 to 2010 (Mar. 2011). This growth has strained regional water supplies, and north Texas’ need for water has been exacerbated in recent years by a long and costly drought. See generally Galbraith, A Drought More Than Texas-Size, International Herald Tribune, Oct. 3, 2011, p. 4. Against this backdrop, petitioner Tarrant, a Texas state agency responsible for providing water to north-central Texas (including the cities of Fort Worth, Arlington, and Mansfield), has endeavored to secure new sources of water for the area it serves. From 2000 to 2002, Tarrant, along with several other Texas water districts, offered to purchase water from Oklahoma and the Choctaw and Chickasaw Nations. See 2 App. 336–382. But these negotiations were unsuccessful and Tarrant eventually abandoned these efforts. Because Texas’ need for water only continued to grow, Tarrant settled on a new course of action. In 2007, Tarrant sought a water resource permit from the Oklahoma Water Resources Board (OWRB),[5] respondents here, to take 310,000 acre feet[6] per year of surface water from the Kiamichi River, a tributary of the Red River located in Oklahoma. Tarrant proposed to divert the Kiamichi River, at a point located in subbasin 5 of Reach II, before it discharges into the Red River and, according to Tarrant, becomes too saline for potable use. Tarrant knew, however, that Oklahoma would likely deny its permits because various state laws (collectively, the Oklahoma water statutes) effectively prevent out-of-state applicants from taking or diverting water from within Oklahoma’s borders. These statutes include a requirement that the OWRB consider, when evaluating an application to take water out of State, whether that water “could feasibly be transported to alleviate water short- ages in the State of Oklahoma.” Okla. Stat., Tit. 82, §105.12(A)(5) (West 2013). The statutes also require that no permit issued by the OWRB to use water outside of the State shall “[i]mpair the ability of the State of Oklahoma to meet its obligations under any interstate stream compact.” §105.12A(B)(1). A separate provision creates a permitting review process that applies only to out-of- state water users. §105.12(F). Oklahoma also requires legislative approval for out-of-state water-use permits, §105.12A(D), and further provides that “[w]ater use within Oklahoma . . . be developed to the maximum extent feasible for the benefit of Oklahoma so that out-of-state downstream users will not acquire vested rights therein to the detriment of the citizens of this state,” §1086.1(A)(3). Interpreting these laws, Oklahoma’s attorney general has concluded that “we consider the proposition unrealistic that an out-of-state user is a proper permit applicant before the [OWRB]” because “[w]e can find no intention to create the possibility that such a valuable resource as water may become bound, without compensation, to use by an out-of-state user.” 1 App. 118. When Tarrant filed its permit application, it also filed suit against respondents in Federal District Court. As relevant here, Tarrant sought to enjoin enforcement of the Oklahoma water statutes by the OWRB. Tarrant argued that the statutes, and the interpretation of them adopted by Oklahoma’s attorney general, were pre-empted by federal law and violated the Commerce Clause by discriminating against interstate commerce in water. The District Court granted summary judgment for the OWRB on both of Tarrant’s claims. See No. CIV–07–0045–HE, 2010 WL 2817220, *4 (WD Okla., July 16, 2010); No. CIV–07–0045–HE (WD Okla., Nov. 18, 2009), App. to Pet. for Cert. 72a–73a, 2009 WL 3922803, *8. The Tenth Circuit affirmed. 656 F.3d 1222, 1250 (2011).[7] We granted Tarrant’s petition for a writ of certiorari, 568 U. S. ___ (2013), and now affirm the judgment of the Tenth Circuit. II A Tarrant claims that under §5.05(b)(1) of the Compact, it has the right to cross state lines and divert water from Oklahoma located in subbasin 5 of Reach II and that the Oklahoma water statutes interfere with its ability to exercise that right. Section 5.05(b)(1) provides: “The Signatory States shall have equal rights to the use of runoff originating in subbasin 5 and undesignated water following into subbasin 5, so long as the flow of the Red River at the Arkansas-Louisiana state boundary is 3,000 [CFS] or more, provided no state is entitled to more than 25 percent of the water in excess of 3,000 [CFS].” 1 App. 25. In Tarrant’s view, this provision essentially creates a borderless common in which each of the four signatory States may cross each other’s boundaries to access a shared pool of water. Tarrant reaches this interpretation in two steps. First, it observes that §5.05(b)(1)’s “equal rights” language grants each State an equal entitlement to the waters of subbasin 5, subject to a 25 percent cap. Second, Tarrant argues §5.05(b)(1)’s silence concerning state lines indicates that the Compact’s drafters did not intend to allocate water according to state borders in this section. According to Tarrant, “the ‘25 percent’ language [of §5.05(b)(1)] makes clear that, in exercising its ‘equal rights’ to the common pool of water, no State may take more than a one-quarter share,” Reply Brief 3, but any of the signatory States may “cross state lines to obtain [its] shar[e] of Subbasin 5 waters,” Brief for Petitioner 32. The OWRB disputes this reading. In its view, the “equal rights” promised by §5.05(b)(1) afford each State an equal opportunity to make use of the excess water within subbasin 5 of Reach II but only within each State’s own borders. This is because the OWRB reads §5.05(b)(1)’s silence differently from Tarrant. The OWRB interprets that provision’s absence of language granting any cross-border rights to indicate that the Compact’s drafters had no intention to create any such rights in the signatory States. Unraveling the meaning of §5.05(b)(1)’s silence with respect to state lines is the key to resolving whether the Compact pre-empts the Oklahoma water statutes.[8] If §5.05(b)(1)’s silence means that state borders are irrelevant to the allocation of water in subbasin 5 of Reach II, then the Oklahoma water laws at issue conflict with the cross-border rights created by federal law in the form of the Compact and must be pre-empted. But if §5.05(b)(1)’s silence instead reflects a background understanding on the part of the Compact’s drafters that state borders were to be respected within the Compact’s allocation, then the Oklahoma statutes do not conflict with the Compact’s allocation of water. B Interstate compacts are construed as contracts under the principles of contract law. Texas v. New Mexico, 482 U.S. 124, 128 (1987). So, as with any contract, we begin by examining the express terms of the Compact as the best indication of the intent of the parties, see also Montana v. Wyoming, 563 U. S. ___, ___, and n. 4, ___, (2011) (slip op., at 5, and n. 4, 17); Restatement (Second) of Contracts §203(b) (1979). Tarrant argues that because other provisions of the Compact reference state borders, §5.05(b)(1)’s silence with respect to state lines must mean that the Compact’s drafters intended to permit cross-border diversions. For example, §5.03(b), which governs subbasin 3 of Reach II, provides that “[t]he States of Oklahoma and Arkansas shall have free and unrestricted use of the water of this subbasin within their respective states, subject, however, to the limitation that Oklahoma shall allow a quantity of water equal to . . . 40 percent of the total runoff originating below the following existing, authorized or proposed last major downstream damsites in Okla- homa to flow into Arkansas.” 1 App. 23–24 (emphasis added). Section 6.03(b), which covers subbasin 3 of Reach III, similarly provides that “Texas and Louisiana within their respective boundaries shall each have the unrestricted use of the water of this subbasin subject to the following [conditions].” Id., at 33 (emphasis added). Thus, §5.03(b) and §6.03(b) mimic §5.05(b)(1) in allocating water rights within a subbasin, but differ in that they make explicit ref-erence to water use “within” state boundaries. Relying on the expressio unius canon of construction, Tarrant finds that §5.05(b)’s silence regarding borders is significant because “ ‘[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed [that] Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Brief for Petitioner 29 (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). But Tarrant’s argument fails to account for other sections of the Compact that cut against its reading. For example, §5.05(b)(3), which governs the waters of subbasin 5 in Reach II when flows are below 1,000 CFS, requires that during such periods, Arkansas, Texas, and Oklahoma allow water “within their respective states to flow into the Red River as required to maintain a 1,000 [CFS] flow at the Arkansas-Louisiana state boundary.” 1 App. 25 (emphasis added). Obviously none of the upstream States can redirect water that lies outside of their borders, so the phrase “within their respective states” is superfluous in §5.05(b)(3). In contrast, §5.05(b)(2), which governs when the River’s flow at the Arkansas-Louisiana border is above 1,000 CFS but below 3,000 CFS, requires that upstream States allow a flow to Louisiana equivalent to 40 percent of total weekly runoff originating within the subbasin and 40 percent of undesignated water flowing into subbasin 5 of Reach II. Id., at 25. This language can only refer to water within each State’s borders because otherwise each State would have to contribute 40 percent to the total water flow, which would add up to more than 100 percent. Read together and to avoid absurd results, §§5.05(b)(2) and (3) suggest that each upstream State is individually responsible for ensuring that sufficient subbasin 5 water located within its respective borders flows down to Louisiana, even though §5.05(b)(2) lacks any explicit reference to state lines. Applying Tarrant’s understanding of §5.05(b)(1)’s silence regarding state lines to other of the Compact’s provisions would produce further anomalous results. Consider §6.01(b). That provision states that “Texas is apportioned sixty (60) percent of the runoff of [subbasin 1 of Reach III] and shall have unrestricted use thereof; Arkansas is entitled to forty (40) percent of the runoff of this subbasin.” Id., at 32. Because Texas is upstream from Arkansas, water flows from Texas to Arkansas. Given this situation, the commonsense reason for §6.01(b)’s 60-to-40 allocation is to prevent Texas from barring the flow of water to Arkansas. While there is no reference to state boundaries in the section’s text, the unstated assumption underlying this provision is that Arkansas must wait for its 40 percent share to go through Texas before it can claim it. But applying Tarrant’s understanding of silence regarding state borders to this section would imply that Arkansas could enter into Texas without having to wait for the water that will inevitably reach it. This counterintuitive outcome would thwart the self-evident purposes of the Compact. Further, other provisions of the Compact share this structure of allocating a proportion of water that will flow from an upstream State to a downstream one.[9] Accepting Tarrant’s reading would upset the balance struck by all these sections. At the very least, the problems that arise from Tarrant’s proposed reading suggest that §5.05(b)(1)’s silence is ambiguous regarding cross-border rights under the Compact. We therefore turn to other interpretive tools to shed light on the intent of the Compact’s drafters. See Oklahoma v. New Mexico, 501 U.S. 221, 235, n. 5 (1991).[10] Three things persuade us that cross-border rights were not granted by the Compact: the well-established principle that States do not easily cede their sovereign powers, including their control over waters within their own territories; the fact that other interstate water compacts have treated cross-border rights explicitly; and the parties’ course of dealing. 1 The background notion that a State does not easily cede its sovereignty has informed our interpretation of interstate compacts. We have long understood that as sovereign entities in our federal system, the States possess an “absolute right to all their navigable waters and the soils under them for their own common use.” Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842). Drawing on this principle, we have held that ownership of submerged lands, and the accompanying power to control navigation, fishing, and other public uses of water, “is an essen- tial attribute of sovereignty,” United States v. Alaska, 521 U.S. 1, 5 (1997). Consequently, “ ‘[a] court deciding a question of title to [a] bed of navigable water [within a State’s boundaries] must . . . begin with a strong presumption’ against defeat of a State’s title.” Id., at 34 (quoting Montana v. United States, 450 U.S. 544, 552 (1981)). See also Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 174 (2001); Utah Div. of State Lands v. United States, 482 U.S. 193, 195 (1987). Given these principles, when confronted with silence in compacts touching on the States’ authority to control their waters, we have concluded that “[i]f any inference at all is to be drawn from [such] silence on the subject of regula- tory authority, we think it is that each State was left to regulate the activities of her own citizens.” Virginia v. Maryland, 540 U.S. 56, 67 (2003). Cf. New Jersey v. New York, 523 U.S. 767, 783, n. 6 (1998) (“[T]he silence of the Compact was on the subject of settled law governing avulsion, which the parties’ silence showed no intent to modify”). Tarrant asks us to infer from §5.05(b)(1)’s silence regarding state borders that the signatory States have dispensed with the core state prerogative to control water within their own boundaries.[11] But as the above demonstrates, States rarely relinquish their sovereign powers, so when they do we would expect a clear indication of such devolution, not inscrutable silence. We think that the better understanding of §5.05(b)(1)’s silence is that the parties drafted the Compact with this legal background in mind, and therefore did not intend to grant each other cross-border rights under the Compact. In response, Tarrant contends that its interpretation would not intrude on any sovereign prerogative of Oklahoma because that State would retain its authority to regulate the water within its borders. Because anyone seeking water from Oklahoma would still have to apply to the OWRB, receive a permit, and abide by its conditions, Tarrant argues that Oklahoma’s sovereign authority remains untouched by its interpretation. But Tarrant cannot have it both ways. Adopting Tarrant’s reading would necessarily entail assuming that Oklahoma and three other States silently surrendered substantial control over the water within their borders when they agreed to the Compact. Given the background principles we have described above, we find this unlikely to have been the intent of the Compact’s signatories. 2 Looking to the customary practices employed in other interstate compacts also helps us to ascertain the intent of the parties to this Compact. See Alabama v. North Carolina, 560 U.S. 330 ___, ___ (2010) (slip op., at 9); Oklahoma, 501 U. S., at 235, n. 5; Texas v. New Mexico, 462 U.S. 554, 565 (1983). See also Restatement (Second) of Contracts §203(b) (explaining that “usage of trade” may be relevant in interpreting a contract). Many of these other compacts feature language that unambiguously permits signatory States to cross each other’s borders to fulfill obligations under the compacts. See, e.g., Amended Bear River Compact, Art. VIII(A), 94Stat. 12 (“[N]o State shall deny the right of another signatory State . . . to acquire rights to the use of water . . . in one State for use of water in another”).[12] The absence of comparable language in the Red River Compact counts heavily against Tarrant’s reading of it. Tellingly, many of these compacts provide for the terms and mechanics of how such cross-border relationships will operate, including who can assert such cross-border rights, see, e.g., Kansas-Nebraska Big Blue River Compact, Art. VII(1), 86Stat. 198, who should bear the costs of any cross-border diversions, see, e.g., Belle Fourche River Compact, Art. VI, 58Stat. 96–97, and how such diversions should be administered, Arkansas River Basin Compact, Kansas-Oklahoma, Art. VII(A), 80Stat. 1411. See also Brief for Professors of Law and Political Science as Amici Curiae 11–14 (giving more examples). Provisions like these are critical for managing the complexities that ensue from cross-border diversions. Consider the mechanics of a cross-border diversion or taking of water in this case. If Tarrant were correct, then applicants from Arkansas, Texas, and Louisiana could all apply to the OWRB for permits to take water from Oklahoma. The OWRB would then be obligated to determine the total amount of water in Oklahoma beyond the 25 percent cap created in §5.05(b)(1), given that the Compact would only obligate Oklahoma to deliver water beyond its quarter share. This alone would be a herculean task because the Compact does not require ongoing monitoring or accounting, see Compact §2.11, 1 App. 13, and not all of the water in subbasin 5 is located or originates in Oklahoma. Moreover, the OWRB would be tasked with determining the priority under the Compact of applicants from other States. This would almost certainly require the OWRB to not only determine whether Oklahoma had received more or less than its 25 percent allotment, but whether other States had as well. Put plainly, the end result would be a jurisdictional and administrative quagmire. The pro-visions in the other interstate water compacts resolve these complications. The absence of comparable provisions in the Red River Compact strongly suggests that cross-border rights were never intended to be part of the States’ agreement. Tarrant counters that not all interstate compacts that permit cross-border diversions have explicit language to this effect. On this front, Tarrant manages to identify one interstate compact that it contends permits cross-border diversions without express language to that effect, the Upper Niobrara River Compact, Pub. L. 91–52, 83Stat. 86. Tarrant observes that this compact, which deals with a river mostly located in Nebraska with only a small portion in Wyoming, provides that “[t]here shall be no restrictions on the use of the surface waters of [the river] by Wyoming.” See Art. V(A)1, id., at 88. Tarrant suggests that this language, coupled with the fact that the bulk of the river is in Nebraska, implicitly indicates that the compact grants Wyoming a right to enter Nebraska and use the river’s water. First, we are not convinced that a single compact’s failure to reference state borders does much to detract from the overall custom in this area. See supra, at 16–18, and n. 12. Second, the Upper Niobrara River Compact is not a helpful counterexample for Tarrant. The general provision that Tarrant quotes is paired with a host of detailed conditions. See Arts. V(A)1(a)–(f), 83Stat. 88. Contrary to Tarrant’s position, then, assuming that the Upper Niobrara River compact does create any cross-border rights, it does so not through silence, but through the detailed scheme that would apply to any such contemplated diversions. Tarrant also argues that §2.05(d) of the Red River Compact, which provides that “[e]ach Signatory State shall have the right to” “[u]se the bed and banks of the Red River and its tributaries to convey stored water, imported or exported water, and water apportioned according to this Compact,” 1 App. 11, in fact authorizes cross-border diversions. Because the present border between Texas and Oklahoma east of the Texas Panhandle is set by the vegetation line on the south bank of the River, Red River Boundary Compact, 114Stat. 919, Tarrant contends that §2.05(d) reflects an understanding on the part of the Compact’s drafters that state borders could be crossed. But the issue is not as simple as Tarrant makes it out to be. When the Compact was drafted, the Texas-Oklahoma border was fixed at the south bank of the River. See Texas v. Oklahoma, 457 U.S. 172 (1982). If Texas was able to access water through the south bank of the River—an issue left unbriefed by the parties—the Compact’s framers may have believed that Texas could reach the River and take water from it without having to enter Oklahoman land, casting doubt on Tarrant’s theory. In any event, even if §2.05(d) is read to establish a cross-border right, it does so through express language setting forth the location and purposes under which such an incursion is permissible. This is different from the inference from silence that Tarrant asks us to draw in §5.05(b)(1). 3 The parties’ conduct under the Compact also undermines Tarrant’s position. A “part[y’s] course of performance under the Compact is highly significant” evidence of its understanding of the compact’s terms. Alabama v. North Carolina, 560 U. S., at___ (slip op., at 14). Since the Compact was approved by Congress in 1980, no signatory State had pressed for a cross-border diversion under the Compact until Tarrant filed its suit in 2007. Brief for Respondents 26, 49–51. Indeed, Tarrant attempted to purchase water from Oklahoma over the course of 2000 until 2002, see supra, at 7, a strange offer if Tarrant believed it was entitled to demand such water without payment under the Compact. In response, Tarrant maintains that there were “compelling business reasons” for it to purchase water. Reply Brief 17. We are unpersuaded. If Tarrant believed that it had a right to water located in Oklahoma, there would have been “compelling business reasons” to mention this right given that billions of dollars were at stake. See 2 App. 362–363 (summarizing Texas purchase proposal). Yet there is no indication that Tarrant or any other Texas agency or the State of Texas itself previously made any mention of cross-border rights within the Compact, and none of the other signatory States has ever made such a claim. 4 The Compact creates no cross-border rights in Texas. Tarrant’s remaining arguments do not persuade us otherwise. First, Tarrant argues that its interpretation of the Compact is necessary to realize the “structure and purpose of Reach II.” Brief for Petitioner 34–38. Tarrant contends that because the boundary of subbasin 5 is set by the location of the last existing, authorized, or proposed sites for a downstream dam before the Red River, see Compact §§5.01(a), 5.02(a), 5.03(b), 5.04(a), 1 App. 22–24, the Compact allows each of the States upstream from Louisiana to prevent water from flowing from its tributaries into subbasin 5. Tarrant reasons that each State will therefore hold whatever water it needs in its upstream basins. Given this, Tarrant maintains that any water that a State voluntarily allows to reach subbasin 5 must be surplus water that State did not intend to use, and if the upstream State has no need for that water, then there is no reason not to allow other States to access and use it, even across borders. This argument is founded on a shaky premise: It assumes that flows from these dammed-up tributaries are the sole source of water in subbasin 5. But §5.05(b)(1) explains that “[s]ignatory States shall have equal rights to the use of runoff originating in subbasin 5,” as well as “water flowing into subbasin 5,” which would include flows from the main stem of the River itself. Id., at 25. Thus, there are waters that are specific to subbasin 5 separate from those originating in the tributaries covered by subbasins 1 through 4. Tarrant’s account of the purposes of subbasin 5 does not explain how these waters were to be allocated. Tarrant’s second argument regarding the purposes of Reach II is that §5.05(b)(1)’s 25 percent cap on each State’s access to excess water in subbasin 5 should be read to imply that if a State cannot access sufficient water within its borders to meet its share under the cap, then it must be able to cross borders to reach that water. Were it otherwise, Tarrant explains, the 25 percent cap would have no purpose. To support this argument, Tarrant draws on a 1970 engineering report that it contends shows that only 16 percent of the freshwater flowing into subbasin 5 was located in Texas. Brief for Petitioner 9, n. 5. The OWRB challenges this percentage with its own calculations drawn from the report, and asserts that Texas had access to at least 29 percent of the excess water in subbasin 5 within its own borders. Brief for Respondents 26, 47–48, and n. 17. Fortunately, we need not delve into calculations based on a decades-old engineering report to resolve this argument. As we have explained, supra, at 4–6, Texas does not have a minimum guarantee of 25 percent of the excess water in subbasin 5. If it believes that Oklahoma is using more than its 25 percent allotment and wishes to stop it from doing so, then it may call for an accounting under §2.11 of the Compact and, depending on the results of that accounting, insist that Oklahoma desist from taking more than its provided share. See Compact §2.11, and Comment on Art. II, 1 App. 13–16. This is the appropriate remedy provided under the Compact. But Texas has never done so and Tarrant offers no evidence that in the present day Texas cannot access its 25 percent share on its own land. C Under the Compact’s terms, water located within Oklahoma’s portion of subbasin 5 of Reach II remains under Oklahoma’s control. Accordingly, Tarrant’s theory that Oklahoma’s water statutes are pre-empted because they prevent Texas from exercising its rights under the Compact must fail for the reason that the Compact does not create any cross-border rights in signatory States. III Tarrant also challenges the constitutionality of the Oklahoma water statutes under a dormant Commerce Clause theory. Tarrant argues that the Oklahoma water statutes impermissibly “ ‘discriminat[e] against interstate commerce’ for the ‘forbidden purpose’ of favoring local interests” by erecting barriers to the distribution of water left unallocated under the Compact. Brief for Petitioner 47–48 (quoting Department of Revenue of Ky. v. Davis, 553 U.S. 328, 338 (2008)). Tarrant’s argument is premised on the position that if we “adopt the Tenth Circuit’s or respondent’s interpretation [of the Compact], . . . a substantial amount of Reach II, Subbasin 5 water located in Oklahoma is not apportioned to any State and therefore is available to permit applicants like Tarrant.” Brief for Petitioner 47. So, Tarrant continues, because Oklahoma’s laws prevent this “unallocated water” from being distributed out of State, those laws violate the Commerce Clause. Tarrant’s assumption that that the Compact leaves some water “unallocated” is incorrect. The interpretive comment for Article V of the Compact makes clear that when the River’s flow is above 3,000 CFS, “all states are free to use whatever amount of water they can put to beneficial use,” subject to the requirement that “[i]f the states have competing uses and the amount of water available in excess of 3000 CFS cannot satisfy all such uses, each state will honor the other’s right to 25% of the excess flow.” 1 App. 29–30. If more than 25 percent of subbasin 5’s water is located in Oklahoma, that water is not “unallocated”; rather, it is allocated to Oklahoma unless and until another State calls for an accounting and Oklahoma is asked to refrain from utilizing more than its entitled share.[13] The Oklahoma water statutes can- not discriminate against interstate commerce with re-spect to unallocated waters because the Compact leaves no waters unallocated. Tarrant’s Commerce Clause argument founders on this point. * * * The Red River Compact does not pre-empt Okla- homa’s water statutes because the Compact creates no cross-border rights in its signatories for these statutes to infringe. Nor do Oklahoma’s laws run afoul of the Commerce Clause. We affirm the judgment of the Court of Appeals for the Tenth Circuit. It is so ordered. Notes 1 Interpretive comments were included in the Compact so that future readers “might be apprised of the intent of the Compact Negotiation Committee with regard to each Article of the Compact.” Compact, Comment on Preamble, 1 App. 9. 2 Within subbasins 1, 2, and 4, water was fully apportioned to a single State. See Compact §5.01(b), id., at 22–23 (apportioning water of subbasin 1 and its “unrestricted use” to Oklahoma); §5.02(b), id., at 23 (same for Texas with respect to subbasin 2); §5.04(b), id., at 24 (same for Texas with respect to subbasin 4). Only subbasin 3, which includes portions of Oklahoma and Arkansas, breaks from this pattern and was divided along the lines of a 60-to-40 split, with both States having “free and unrestricted use of the water of this subbasin within their respective states, subject, however, to the limitation that Oklahoma shall allow a quantity of water equal to the 40 percent of the total runoff originating below the following existing, authorized or proposed last major downstream damsites in Oklahoma to flow into Arkansas.” §5.03(b), id., at 23–24. 3 The Compact defines “undesignated water” as “all water released from storage other than ‘designated water.’ ” §3.01(l), id., at 17. “[D]esignated water” means “water released from storage, paid for by non-Federal interests, for delivery to a specific point of use or diversion.” §3.01(k), ibid. 4 In such circumstances, the two relevant paragraphs provide: “(2) Whenever the flow of the Red River at the Arkansas-Louisiana state boundary is less than 3,000 [CFS], but more than 1,000 [CFS],the States of Arkansas, Oklahoma, and Texas shall allow to flow into the Red River for delivery to the State of Louisiana a quantity of water equal to 40 percent of the total weekly runoff originating in subbasin5 and 40 percent of undesignated water flowing into subbasin 5; pro-vided, however, that this requirement shall not be interpreted to require any state to release stored water. “(3) Whenever the flow of the Red River at the Arkansas-Louisiana state boundary falls below 1,000 [CFS], the States of Arkansas, Oklahoma, and Texas shall allow a quantity of water equal to all the weekly runoff originating in subbasin 5 and all undesignated water flowing in subbasin 5 within their respective states to flow into the Red River as required to maintain a 1,000 [CFS] flow at the Arkansas-Louisiana state boundary.” §5.05(b), id., at 25. 5 Under §2.10 of the Compact each signatory State retains “the right or power . . . to regulate within its boundaries the appropriation, use, and control of water.” Id., at 12. Thus, the Compact does not expressly pre-empt any state laws that address the control of water. Oklahoma law, in turn, requires that any “state or federal governmental agency” that “intend[s] to acquire the right to the beneficial use of any water” in Oklahoma must apply to the OWRB for “a permit to appropriate” water before “commencing any construction” or “taking [any water] from any constructed works.” Okla. Stat., Tit. 82, §105.9 (West 2013). 6 An acre-foot is equivalent to the volume of one acre of surface area filled to a depth of one foot. Webster’s Third New International Dictionary 19 (1966). 7 The parties have stipulated that OWRB will not take action onTarrant’s application until this litigation has concluded. Brief for Peti-tioner 16. 8 The Compact Clause of the Constitution provides that “[n]o State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State.” Art. I, §10, cl. 3. Accordingly, before a compact between two States can be given effect it must be approved by Congress. See Virginia v. Maryland, 540 U.S. 56, 66 (2003). Once a compact receives such approval, it is “transform[ed] . . . into a law of the United States.” Ibid. (internal quotation marks omitted). The Supremacy Clause, Art. VI, cl. 2, then ensures that a congressionally approved compact, as a federal law, pre-empts any state law that conflicts with the Compact. See Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U.S. 141, 152–153 (1982). 9 See Compact §4.01(b), 1 App. 18 (“The annual flow within this subbasin is hereby apportioned sixty (60) percent to Texas and forty (40) percent to Oklahoma”); §6.02(b), id., at 32 (“Arkansas is apportioned sixty (60) percent of the runoff of this subbasin and shall have unrestricted use thereof; Louisiana is entitled to forty (40) percent of the runoff of this subbasin”). 10 There is, however, one interpretive tool that is inapplicable here: the presumption against pre-emption. The Court of Appeals repeatedly referenced and relied upon the presumption in its opinion. See 656 F.3d 1222, 1239, 1242, 1245–1246 (CA10 2011). Yet the presumption against pre-emption is rooted in “respect for the States as ‘independent sovereigns in our federal system’ ” and “assume[s] that ‘Congress does not cavalierly pre-empt’ ” state laws. Wyeth v. Levine, 555 U.S. 555, 565–566, n. 3 (2009). When the States themselves have drafted and agreed to the terms of a compact, and Congress’ role is limited to approving that compact, there is no reason to invoke the presumption. 11 Of course, the power of States to control water within their borders may be subject to limits in certain circumstances. For example, those imposed by the Commerce Clause. See Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 954–958 (1982). Here we deal only with whether the parties’ silence on state boundaries in the allocation of water under a compact suggests that borders are irrelevant for that allocation. As noted infra, at 23–24, Tarrant has not raised any Commerce Clause challenge to Oklahoma’s control of the water allocated to it by the Compact. 12 See also Amended Costilla Creek Compact, Art. III(2), 77Stat. 353 (“Each State grants for the benefit of the other . . . the rights . . . in one State for use in the other”); Klamath River Basin Compact, Art. V(A), 71Stat. 500 (“Each state hereby grants for the benefit of the other . . . the right . . . in one state for use in the other”); Snake River Compact, Art. VIII(A), 64Stat. 32 (“[N]either State shall deny the right of the other State to acquire rights to the use of water . . . in one State for use in the other”); South Platte River Compact, Art. VI(1), 44Stat. 198 (“Colorado consents that Nebraska and its citizens may . . . divert water from the South Platte River within Colorado for use in Nebraska”); Upper Colorado River Basin Compact, Art. IX(a), 63Stat. 37 (“[N]o State shall deny the right of another signatory State . . . to acquire rights to the use of water . . . in an upper signatory State for consumptive use in a lower signatory State”). 13 Moreover, even if Oklahoma utilized less than 25 percent of the excess subbasin 5 water within its territory and allowed the rest to flow down the River, that water would pass from Reach II into Reach V, see Compact §2.12, 1 App. 13, the waters of which are completely allocated to Louisiana, §8.01, id., at 38. Again, no water is left “unallocated.”

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus TARRANT REGIONAL WATER DISTRICT v. HERRMANN et al. certiorari to the united states court of appeals for the tenth circuit No. 11–889. Argued April 23, 2013—Decided June 13, 2013 The Red River Compact (or Compact) is a congressionally sanctioned agreement that allocates water rights within the Red River basin among the States of Oklahoma, Texas, Arkansas, and Louisiana. The area it governs is divided into five separate subdivisions called “Reaches,” each of which is further divided into smaller “subbasins.” At issue here are rights under the Compact to water located in Oklahoma’s portion of Reach II, subbasin 5. In Reach II, the Compact—recognizing that Louisiana lacks suitable reservoir sites to store water during high flow periods and that the upstream States (Texas, Oklahoma, and Arkansas) were unwilling to release their own stored water for the benefit of a downstream State—granted control over the water in four upstream subbasins (subbasins 1 through 4) to the States in which each subbasin is located and required that water in a fifth subbasin, subbasin 5, be allowed to flow to Louisiana at certain minimum levels. Section 5.05(b)(1) of the Compact gives the States “equal rights” to the use of subbasin 5’s waters when the flow is 3,000 cubic feet per second (CFS) or more, “provided no state is entitled to more than 25 percent of the water in excess of 3,000 [CFS].” Under the Compact, States are also entitled to continue with their intrastate water administration. Petitioner Tarrant Regional Water District (Tarrant) is a Texas state agency responsible for providing water to north-central Texas and its rapidly growing population. After unsuccessfully attempting to purchase water from Oklahoma and others, Tarrant sought a water resource permit from the Oklahoma Water Resources Board (OWRB), respondents here, to take surface water from a tributary of the Red River at a point located in Oklahoma’s portion of subbasin 5 of Reach II. Knowing that the OWRB would likely deny its permit application because of Oklahoma water laws that effectively prevent out-of-state applicants from taking or diverting water from within Oklahoma’s borders, Tarrant filed suit in federal court simultaneously with its permit application, seeking to enjoin the OWRB’s enforcement of the state statutes on grounds that they were pre-empted by federal law in the form of the Compact and violated the Commerce Clause by discriminating against interstate commerce in water. The District Court granted summary judgment for the OWRB, and the Tenth Circuit affirmed. Held: 1. The Compact does not pre-empt the Oklahoma water statutes. . (a) Tarrant claims that §5.05(b)(1) creates a borderless common in subbasin 5 in which each of the signatory States may cross each other’s boundaries to access a shared pool of water. Tarrant observes that §5.05(b)(1)’s “equal rights” language grants each State an equal entitlement to subbasin 5’s waters, subject to a 25 percent cap, and argues that its silence concerning state lines indicates that the Compact’s drafters did not intend the provision to allocate water according to state borders. The OWRB counters that §5.05(b)(1)’s “equal rights” afford each State an equal opportunity to use subbasin 5’s excess water within each State’s own borders, but that its silence on cross-border rights indicates that the Compact’s drafters had no intention to create any such rights in the signatory States. . (b) Because interstate compacts are construed under contract-law principles, see Texas v. New Mexico, 482 U.S. 124, 128, the Court begins by examining the Compact’s express terms as the best indication of the parties’ intent. However, §5.05(b)(1)’s silence is, at the very least, ambiguous regarding cross-border rights under the Compact, so the Court turns to other interpretive tools to shed light on the drafters’ intent. Three things persuade the Court that the Compact did not grant cross-border rights: the well-established principle that States do not easily cede their sovereign powers; the fact that other interstate water compacts have treated cross-border rights explicitly; and the parties’ course of dealing. . (1) The sovereign States possess an “absolute right to all their navigable waters and the soils under them for their own common use.” Martin v. Lessee of Waddell, 16 Pet. 367, 410. So, for example, “ ‘[a] court deciding a question of title to [a] bed of navigable water [within a State’s boundaries] must . . . begin with a strong presumption’ against defeat of a State’s title.” United States v. Alaska, 521 U.S. 1, 34. It follows, then, that “[i]f any inference at all is to be drawn from” silence in compacts touching on the States’ authority to control their waters, “it is that each State was left to regulate the activities of her own citizens.” Virginia v. Maryland, 540 U.S. 56, 67. Tarrant contends that §5.05(b)(1)’s silence infers that the signatory States dispensed with the core state prerogative to control water within its borders. But since States rarely relinquish their sovereign powers, the better understanding is that there would be a clear indication of such devolution, not inscrutable silence. Tarrant counters that its interpretation would not intrude on any sovereign prerogative of Oklahoma, which would retain its authority to regulate the water within its borders. But adopting Tarrant’s reading would necessarily entail assuming that Oklahoma and three other States silently surrendered substantial control over their waters when they agreed to the Compact. . (2) Looking to the customary practices employed in other interstate compacts also helps in ascertaining the parties’ intent. See, e.g., Alabama v. North Carolina, 560 U.S. 330, ___. Many compacts feature unambiguous language permitting signatory States to cross each other’s borders to fulfill obligations under the compacts, and many provide for the terms and mechanics of how such relationships will operate. The absence of comparable provisions in the Red River Compact strongly suggests that cross-border rights were never intended to be part of the agreement. Tarrant claims that not all interstate compacts have such explicit language, but cites only one such compact, and even it sets out a detailed scheme that would apply to any contemplated diversions. Similarly, even if §2.05(d) of the Compact, which gives “[e]ach Signatory State . . . the right to” “[u]se the bed and banks of the Red River and its tributaries to convey stored water, imported or exported water, and water apportioned according to this Compact,” is read to establish cross-border diversions, it does so through express language, not through an inference from silence. . (3) The parties’ conduct under the Compact also undermines Tarrant’s position. See Alabama v. North Carolina, 560 U. S., at ___. Once the Compact was approved in 1980, no signatory State pressed for a cross-border diversion until Tarrant filed suit in 2007. And Tarrant’s earlier offer to purchase water from Oklahoma was a strange decision if Tarrant believed the Compact entitled it to demand water without payment. Nor is there any indication that Tarrant, any other Texas agency, or Texas itself previously made any mention of cross-border rights within the Compact; and none of the other signatory States has ever made such a claim. P. 20. (4) Tarrant’s remaining arguments—that its interpretation is necessary to realize the “structure and purpose of Reach II”; and that §5.05(b)(1)’s 25 percent cap on each State’s access to subbasin 5’s ex-cess water implies that if a State cannot access sufficient water within its borders to meet the cap, it must be able to cross borders to reach that water—are unpersuasive. . 2. The Oklahoma water statutes also do not run afoul of the Commerce Clause. Tarrant claims that the statutes discriminate against interstate commerce by preventing water left unallocated under the Compact from being distributed out of State. But Tarrant’s assumption that some water is left “unallocated” is incorrect. The interpretive comment for Article V of the Compact makes clear that when the flow is above 3,000 CFS, “all states are free to use whatever amount of water they can put to beneficial use,” subject to the requirement that if the amount of available water cannot satisfy all of those uses, “each state will honor the other’s right to 25% of the excess flow.” If more than 25 percent of subbasin 5’s water is located in Oklahoma, that water is not “unallocated”; rather, it is allocated to Oklahoma unless and until another State calls for an accounting and Oklahoma is asked to refrain from utilizing more than its entitled share. . 656 F.3d 1222, affirmed. Sotomayor, J., delivered the opinion for a unanimous Court.

To forestall future disputes over the River and its water, Congress authorized the States of Arkansas, Louisiana, Oklahoma, and Texas to negotiate a compact to apportion the water of the Red River basin among themselves. These negotiations lasted over 20 years and culminated in the signing of the Compact in 1978. One of the principal purposes of the compact was to provide an equitable apportionment among the signatory States of the water that the river and its tributaries share. The Compact governs the allocation of water from the New Mexico and Texas border to its terminus in Louisiana, and provides that the signatories shall have equal rights to the use of runoff originating in subbasin 5, so long as the flow of the river at the Arkansas-Louisiana state boundary is 3,000 cubic feet per second (CFS) or more, provided no state is entitled to more than 25 percent of the excess water in excess of that level. However, the Compact does not expressly pre-empt any state laws that address the control of water, such as the Oklahoma water statutes, which require that no permit issued by the OWRB to use water outside of the State shall be allocated to any State unless and until another State calls for an accounting and Oklahoma is asked to refrain from utilizing more than its entitled share. Petitioner, a Texas state agency responsible for providing water to north-central Texas (including the cities of Fort Worth, Arlington, and Mansfield), sought a water resource permit from the Oklahoma Water Resources Board (OWRB) to take 310,000 acre feet per year of surface water from a tributary of the River located in Oklahoma. Tarrant knew that Oklahoma would likely deny its permits because various state laws effectively prevent out-of-state applicants from taking or diverting water from within Oklahoma. The Oklahoma Water Commission concluded that, in normal circumstances, such water could feasibly be transported to alleviate water short- ages in the State, but if the amount of water above 3,100 CFS cannot satisfy all such uses, then each state would honor the other's right to 25% of that excess flow. But when the flow diminishes at the Louisiana border, the upstream States must permit more water to reach Louisiana. Thus, the Oklahoma waters are not apportioned to Oklahoma. To ensure that its apportionments are honored, the compact includes an accounting provision, but an accounting is not mandatory until one or more affected States deem the accounting necessary. The Oklahoma water statute creates no cross-border rights in its signatories for these statutes to infringe. Cf. Montana v. Wyoming, 563 U. S. ___, ___, and n. 4, ___; Restatement (Second) of Contracts §203(b) (1979), which sets forth guidelines for interstate commerce in water. . (a) The Oklahoma statutes, and the interpretation adopted by Oklahoma officials, do not conflict with the jurisdictional and administrative limitations imposed by the Commerce Clause. Although the parties drafted the Compact with this legal background in mind, and therefore did not intend to grant each other cross- border rights under the Compact, their silence regarding state borders does not indicate that they intended to grant Oklahoma and three other States such rights. If §5.05(b)(1) (1) means that state borders are irrelevant to the allocation of water in the subbasins in question, Oklahoma water laws at issue conflict with that section in question and must be preempted. But if it instead reflects a background understanding that the Compact drafters intended state borders to be respected within the allocation, then the Oklahoma statutes do not comport with the Compact. See, e.g., Amended Bear River Compact, supra, 555 U.S. 555, n. 6. Pp. 468 U.D.C. 622-622. (b), filed below: (c) Petitioner has not raised any Commerce Clause challenge to Oklahoma's control of its water allocated to it by the Compact; nor has it suggested that it had a right to water in Oklahoma, since that right was never intended to be part of the States' agreement; since Oklahoma has never done so; and since the pro-visions in other interstate water compacts resolve these complications. Even assuming, arguendo, that Oklahoma silently surrendered substantial control over the water within its borders when it agreed to the compact, it would be unlikely to have been the intent of the parties to this compact. And even if the compact allows each State to hold whatever water it needs in its upstream basins, such interpretation would imply that Arkansas could enter into Texas without having to wait for water that will inevitably reach it. This counterintuitive outcome would thwart the Compact's self-evident purposes. Moreover, other Compact provisions share this structure of allocating a proportion of water that flows from an upstream State to a downstream one. There is no evidence that Oklahoma or any other Texas agency or the State itself

2012_11-10189

https://www.oyez.org/cases/2012/11-10189

. In Martinez v. Ryan, 566 U.S. 1 (2012), we considered the right of a state prisoner to raise, in a federal habeas corpus proceeding, a claim of ineffective assistance of trial counsel. In that case an Arizona procedural rule required a defendant convicted at trial to raise a claim of ineffective assistance of trial counsel during his first state collateral review proceeding—or lose the claim. The defendant in Martinez did not comply with the state procedural rule. But he argued that the federal habeas court should excuse his state procedural failing, on the ground that he had good “cause” for not raising the claim at the right time, namely that, not only had he lacked effective counsel during trial, but also he lacked effective counsel during his first state collateral review proceeding. We held that lack of counsel on collateral review might excuse defendant’s state law procedural default. We wrote: “[A] procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [State’s] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id., at ___ (slip op., at 15). At the same time we qualified our holding. We said that the holding applied where state procedural law said that “claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding.” Ibid. (emphasis added). In this case Texas state law does not say “must.” It does not on its face require a defendant initially to raise an ineffective-assistance-of-trial-counsel claim in a state col- lateral review proceeding. Rather, that law appears at first glance to permit (but not require) the defendant initially to raise a claim of ineffective assistance of trial counsel on direct appeal. The structure and design of the Texas system in actual operation, however, make it “virtually impossible” for an ineffective assistance claim to be presented on direct review. See Robinson v. State, 16 S.W.3d 808, 810–811 (Tex. Crim. App. 2000). We must now decide whether the Martinez exception applies in this procedural regime. We conclude that it does. I A Texas state court jury convicted petitioner, Carlos Trevino, of capital murder. After a subsequent penalty-phase hearing, the jury found that Trevino “would commit criminal acts of violence in the future which would constitute a continuing threat to society,” that he “actually caused the death of Linda Salinas or, if he did not actually cause her death, he intended to kill her or another, or he anticipated a human life would be taken,” and that “there were insufficient mitigating circumstances to warrant a sentence of life imprisonment” rather than death. 449 Fed. Appx. 415, 418 (CA5 2011). The judge consequently imposed a sentence of death. Eight days later the judge appointed new counsel to handle Trevino’s direct appeal. App. 1, 3. Seven months after sentencing, when the trial transcript first became available, that counsel filed an appeal. The Texas Court of Criminal Appeals then considered and rejected Trevino’s appellate claims. Trevino’s appellate counsel did not claim that Trevino’s trial counsel had been constitutionally ineffective during the penalty phase of the trial court proceedings. Id., at 12–24. About six months after sentencing, the trial judge appointed Trevino a different new counsel to seek state collateral relief. As Texas’ procedural rules provide, that third counsel initiated collateral proceedings while Tre- vino’s appeal still was in progress. This new counsel first sought postconviction relief (through collateral review) in the trial court itself. After a hearing, the trial court denied relief; and the Texas Court of Criminal Appeals affirmed that denial. Id., at 25–26, 321–349. Trevino’s postconviction claims included a claim that his trial counsel was constitutionally ineffective during the penalty phase of Trevino’s trial, but it did not include a claim that trial counsel’s ineffectiveness consisted in part of a failure adequately to investigate and to present mitigating circumstances during the penalty phase of Trevino’s trial. Id., at 321–349; see Wiggins v. Smith, 539 U.S. 510, 523 (2003) (counsel’s failure to investigate and present mitigating circumstances deprived defendant of effective assistance of counsel). Trevino then filed a petition in federal court seeking a writ of habeas corpus. The Federal District Court appointed another new counsel to represent him. And that counsel claimed for the first time that Trevino had not received constitutionally effective counsel during the penalty phase of his trial in part because of trial counsel’s failure to adequately investigate and present mitigating circumstances during the penalty phase. App. 438, 456–478. Federal habeas counsel pointed out that Trevino’s trial counsel had presented only one witness at the sentencing phase, namely Trevino’s aunt. The aunt had testified that Trevino had had a difficult upbringing, that his mother had an alcohol problem, that his family was on welfare, and that he had dropped out of high school. She had added that Trevino had a child, that he was good with children, and that he was not violent. Id., at 285–291. Federal habeas counsel then told the federal court that Trevino’s trial counsel should have found and presented at the penalty phase other mitigating matters that his own investigation had brought to light. These included, among other things, that Trevino’s mother abused alcohol while she was pregnant with Trevino, that Trevino weighed only four pounds at birth, that throughout his life Trevino suffered the deleterious effects of Fetal Alcohol Syndrome, that as a child Trevino had suffered numerous head injuries without receiving adequate medical attention, that Trevino’s mother had abused him physically and emotionally, that from an early age Trevino was exposed to, and abused, alcohol and drugs, that Trevino had attended school irregularly and performed poorly, and that Tre- vino’s cognitive abilities were impaired. Id., at 66–67. The federal court stayed proceedings to permit Trevino to raise this claim in state court. The state court held that because Trevino had not raised this claim during his initial postconviction proceedings, he had procedurally defaulted the claim, id., at 27–28; and the Federal District Court then denied Trevino’s ineffective-assistance-of-trial-counsel claim, id., at 78–79. The District Court concluded in relevant part that, despite the fact that “even the most minimal investigation . . . would have revealed a wealth of additional mitigating evidence,” an independent and adequate state ground (namely Trevino’s failure to raise the issue during his state postconviction proceeding) barred the federal habeas court from considering the ineffective-assistance-of-trial-counsel claim. Id., at 131–132. See Coleman v. Thompson, 501 U.S. 722, 729–730 (1991). Trevino appealed. The Fifth Circuit, without considering the merits of Trevino’s ineffective-assistance-of-trial-counsel claim, agreed with the District Court that an independent, adequate state ground, namely Trevino’s procedural default, barred its consideration. 449 Fed. Appx., at 426. Although the Circuit decided Trevino’s case before this Court decided Martinez, the Fifth Circuit’s reasoning in a later case, Ibarra v. Thaler, 687 F.3d 222 (2012), makes clear that the Fifth Circuit would have found that Martinez would have made no difference. That is because in Ibarra the Circuit recognized that Martinez had said that its good-cause exception applies where state law says that a criminal defendant must initially raise his claim of ineffective assistance of trial counsel in initial state collateral review proceedings. 687 F. 3d, at 225–226. Texas law, the Circuit pointed out, does not say explicitly that the defendant must initially raise the claim in state collateral review proceedings. Rather Texas law on its face appears to permit a criminal defendant to raise such a claim on direct appeal. Id., at 227. And the Circuit held that that fact means that Martinez does not apply in Texas. 687 F. 3d, at 227. Since the Circuit’s holding in Ibarra (that Martinez does not apply in Texas) would similarly govern this case, we granted certiorari here to determine whether Martinez applies in Texas. II A We begin with Martinez. We there recognized the historic importance of federal habeas corpus proceedings as a method for preventing individuals from being held in custody in violation of federal law. Martinez, 566 U. S., at ___ (slip op., at 6–7). See generally Preiser v. Rodriguez, 411 U.S. 475, 484–485 (1973). In general, if a convicted state criminal defendant can show a federal habeas court that his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of habeas corpus that requires a new trial, a new sentence, or release. We similarly recognized the importance of federal ha- beas corpus principles designed to prevent federal courts from interfering with a State’s application of its own firmly established, consistently followed, constitutionally proper procedural rules. Martinez, supra, at ___ (slip op., at 6–7). Those principles have long made clear that a conviction that rests upon a defendant’s state law “procedural default” (for example, the defendant’s failure to raise a claim of error at the time or in the place that state law requires), normally rests upon “an independent and adequate state ground.” Coleman, 501 U. S., at 729–730. And where a conviction rests upon such a ground, a fed- eral habeas court normally cannot consider the defendant’s federal constitutional claim. Ibid.; see Martinez, 566 U. S., at ___ (slip op., at 6–7). At the same time, we pointed out that “[t]he doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.” Id., at ___ (slip op., at 6–7). And we turned to the issue directly before the Court: whether Martinez had shown “cause” to excuse his state procedural failing. Id., at ___ (slip op., at 15). Martinez argued that his lawyer should have raised, but did not raise, his claim of ineffective assistance of trial counsel during state collateral review proceedings. Id., at ___ (slip op., at 4). He added that this failure, itself amounting to ineffective assistance, was the “cause” of, and ought to excuse, his procedural default. Id., at ___ (slip op., at 4). But this Court had previously held that “[n]egligence on the part of a prisoner’s postconviction attorney does not qualify as ‘cause,’ ” primarily because a “principal” such as the prisoner, “bears the risk of negligent conduct on the part of his agent,” the attorney. Maples v. Thomas, 565 U. S. ___, ___ (2012) (slip op., at 12) (quoting Coleman, supra, at 753–754; emphasis added). Martinez, in effect, argued for an exception to Coleman’s broad statement of the law. We ultimately held that a “narrow exception” should “modify the unqualified statement in Coleman that an attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a proce- dural default.” Martinez, 566 U. S., at ___ (slip op., at 6). We did so for three reasons. First, the “right to the effective assistance of counsel at trial is a bedrock principle in our justice system. . . . Indeed, the right to counsel is the foundation for our adversary system.” Id., at ___ (slip op., at 9). Second, ineffective assistance of counsel on direct appellate review could amount to “cause,” excusing a defendant’s failure to raise (and thus procedurally defaulting) a constitutional claim. Id., at ___ (slip op., at 8). But States often have good reasons for initially reviewing claims of ineffective assistance of trial counsel during state collateral proceedings rather than on direct appellate review. Id., at ___ (slip op., at 9–10). That is because review of such a claim normally requires a different attorney, because it often “depend[s] on evidence outside the trial record,” and because efforts to expand the record on direct appeal may run afoul of “[a]bbreviated deadlines,” depriving the new attorney of “adequate time . . . to investigate the ineffective-assistance claim.” Id., at ___ (slip op., at 10). Third, where the State consequently channels initial review of this constitutional claim to collateral proceedings, a lawyer’s failure to raise an ineffective-assistance-of-trial-counsel claim during initial-review collateral proceedings, could (were Coleman read broadly) deprive a defendant of any review of that claim at all. Martinez, supra, at ___ (slip op., at 7). We consequently read Coleman as containing an exception, allowing a federal habeas court to find “cause,” thereby excusing a defendant’s procedural default, where (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.” Martinez, supra, at ___ (slip op., at 11, 15). B Here state law differs from that in Martinez in respect to the fourth requirement. Unlike Arizona, Texas does not expressly require the defendant to raise a claim of ineffective assistance of trial counsel in an initial collateral review proceeding. Rather Texas law on its face appears to permit (but not require) the defendant to raise the claim on direct appeal. Does this difference matter? 1 Two characteristics of the relevant Texas procedures lead us to conclude that it should not make a difference in respect to the application of Martinez. First, Texas procedure makes it “virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim” on direct review. Robinson, 16 S. W. 3d, at 810–811. As the Texas Court of Criminal Appeals itself has pointed out, “the inherent nature of most ineffective assistance” of trial counsel “claims” means that the trial court record will often fail to “contai[n] the information necessary to substantiate” the claim. Ex parte Torres, 943 S.W.2d 469, 475 (1997) (en banc). As the Court of Criminal Appeals has also noted, a convicted defendant may make a motion in the trial court for a new trial in order to develop the record on appeal. See Reyes v. State, 849 S.W.2d 812, 816 (1993). And, in principle, the trial court could, in connection with that motion, allow the defendant some additional time to de- velop a further record. Ibid. But that motion-for-new-trial “vehicle is often inadequate because of time constraints and because the trial record has generally not been transcribed at this point.” Torres, supra, at 475. See Tex. Rule App. Proc. 21.4 (2013) (motion for a new trial must be made within 30 days of sentencing); Rules 21.8(a), (c) (trial court must dispose of motion within 75 days of sentencing); Rules 35.2(b), 35.3(c) (transcript must be prepared within 120 days of sentencing where a motion for a new trial is filed and this deadline may be extended). Thus, as the Court of Criminal Appeals has concluded, in Texas “a writ of habeas corpus” issued in state collateral proceedings ordinarily “is essential to gathering the facts necessary to . . . evaluate . . . [ineffective-assistance-of-trial-counsel] claims.” Torres, supra, at 475. See Robinson, supra, at 810–811 (noting that there is “not generally a realistic opportunity to adequately develop the record for appeal in post-trial motions” and that “[t]he time requirements for filing and presenting a motion for new trial would have made it virtually impossible for appellate counsel to adequately present an ineffective assistance claim to the trial court”). See also Thompson v. State, 9 S.W.3d 808, 813–814, and n. 6 (Tex. Crim. App. 1999) (“[I]n the vast majority of cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland”; only “[r]arely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim . . .”); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (similar); Andrews v. State, 159 S.W.3d 98, 102–103 (Tex. Crim. App. 2005) (similar); Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim. App. 2005) (per curiam) (similar); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam) (similar). See also 42 G. Dix & J. Schmolesky, Texas Practice Series §29:76, pp. 844–845 (3d ed. 2011) (hereinafter Texas Practice) (explaining that “[o]ften” the requirement that a claim of ineffective assistance of trial counsel be supported by a record containing direct evidence of why counsel acted as he did “will require that the claim . . . be raised in postconviction habeas proceedings where a full record on the matter can be raised”). This opinion considers whether, as a systematic matter, Texas affords meaningful review of a claim of ineffective assistance of trial counsel. The present capital case illustrates why it does not. The trial court appointed new counsel for Trevino eight days after sentencing. Counsel thus had 22 days to decide whether, and on what grounds, to make a motion for a new trial. She then may have had an additional 45 days to provide support for the motion but without the help of a transcript (which did not become available until much later—seven months after the trial). It would have been difficult, perhaps impossible, within that time frame to investigate Trevino’s background, de- termine whether trial counsel had adequately done so, and then develop evidence about additional mitigating background circumstances. See Reyes, supra, at 816 (“[M]otions for new trial [must] be supported by affidavit . . . specifically showing the truth of the grounds of attack”). Second, were Martinez not to apply, the Texas procedural system would create significant unfairness. That is because Texas courts in effect have directed defendants to raise claims of ineffective assistance of trial counsel on collateral, rather than on direct, review. As noted, they have explained why direct review proceedings are likely inadequate. See supra, at 8–10. They have held that failure to raise the claim on direct review does not bar the defendant from raising the claim in collateral proceedings. See, e.g., Robinson, 16 S. W. 3d, at 813; Ex parte Duffy, 607 S.W.2d 507, 512–513 (Tex. Crim. App. 1980) (overruled on other grounds by Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999)). They have held that the defendant’s decision to raise the claim on direct review does not bar the defendant from also raising the claim in collateral proceedings. See, e.g., Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); Torres, supra, at 475. They have suggested that appellate counsel’s failure to raise the claim on direct review does not constitute “ineffective assistance of counsel.” See Sprouse v. State, No. AP–74933, 2007 WL 283152, *7 (Tex. Crim. App., Jan. 31, 2007) (unpublished). And Texas’ highest criminal court has explicitly stated that “[a]s a general rule” the de- fendant “should not raise an issue of ineffective assistance of counsel on direct appeal,” but rather in collateral re- view proceedings. Mata v. State, 226 S.W.3d 425, 430, n. 14 (2007) (internal quotation marks omitted). See Rob- inson, supra, at 810 (“[A] post-conviction writ proceeding, rather than a motion for new trial, is the preferred method for gathering the facts necessary to substantiate” an ineffective-assistance-of-trial-counsel claim). The criminal bar, not surprisingly, has taken this strong judicial advice seriously. See Guidelines and Standards for Texas Capital Counsel, 69 Tex. B. J. 966, 977, Guideline 12.2(B)(1)(d) (2006) (“[S]tate habeas corpus is the first opportunity for a capital client to raise challenges to the effectiveness of trial or direct appeal counsel”). Texas now can point to only a comparatively small number of cases in which a defendant has used the motion-for-a-new-trial mechanism to expand the record on appeal and then received a hearing on his ineffective-assistance-of-trial-counsel claim on direct appeal. Brief for Respondent 35–36, and n. 6 (citing, inter alia, State v. Morales, 253 S.W.3d 686, 689–691 (Tex. Crim. App. 2008); Robertson v. State, 187 S.W.3d 475, 480–481 (Tex. Crim. App. 2006)). And, of those, precisely one case involves trial counsel’s investigative failures of the kind at issue here. See Armstrong v. State, No. AP–75706, 2010 WL 359020 (Tex. Crim. App., Jan. 27, 2010) (unpublished). How could federal law deny defendants the benefit of Martinez solely because of the existence of a theoretically available pro- cedural alternative, namely direct appellate review, that Texas procedures render so difficult, and in the typical case all but impossible, to use successfully, and which Texas courts so strongly discourage defendants from using? Respondent argues that Texas courts enforce the relevant time limits more flexibly than we have suggested. Sometimes, for example, an appellate court can abate an appeal and remand the case for further record development in the trial court. See Cooks v. State, 240 S.W.3d 906 (Tex. Crim. App. 2007). But the procedural possibilities to which Texas now points seem special, limited in their application, and, as far as we can tell, rarely used. See 43A Texas Practice §50:15, at 636–639; 43B id., §56:235, at 607–609. Cooks, for example, the case upon which respondent principally relies, involved a remand for further record development, but in circumstances where the lower court wrongly failed to give a defendant new counsel in time to make an ordinary new trial motion. 240 S. W. 3d, at 911. We do not believe that this, or other, special, rarely used procedural possibilities can overcome the Texas courts’ own well-supported determination that collateral review normally constitutes the preferred—and indeed as a practical matter, the only—method for raising an ineffective-assistance-of-trial-counsel claim. Respondent further argues that there is no equitable problem to be solved in Texas because if counsel fails to bring a substantial claim of ineffective assistance of trial counsel on direct appeal, the ineffectiveness of appellate counsel may constitute cause to excuse the procedural default. See Murray v. Carrier, 477 U.S. 478 (1986). But respondent points to no case in which such a failure by appellate counsel has been deemed constitutionally ineffective. And that lack of authority is not surprising given the fact that the Texas Court of Criminal Appeals has directed defendants to bring such claims on collateral review. 2 For the reasons just stated, we believe that the Texas procedural system—as a matter of its structure, design, and operation—does not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal. What the Arizona law prohibited by explicit terms, Texas law precludes as a matter of course. And, that being so, we can find no significant difference between this case and Martinez. The very factors that led this Court to create a narrow exception to Coleman in Martinez similarly argue for the application of that exception here. The right involved—adequate assistance of counsel at trial—is similarly and critically important. In both instances practical considerations, such as the need for a new lawyer, the need to expand the trial court record, and the need for sufficient time to develop the claim, argue strongly for initial consideration of the claim during collateral, rather than on direct, review. See Martinez, 566 U. S., at ___ (slip op., at 10); see also Massaro v. United States, 538 U.S. 500, 505 (2003). In both instances failure to consider a lawyer’s “ineffectiveness” during an initial-review collateral proceeding as a potential “cause” for excusing a procedural default will deprive the defendant of any opportunity at all for review of an ineffective-assistance-of-trial-counsel claim. See Martinez, supra, at ___ (slip op., at 7). Thus, for present purposes, a distinction between (1) a State that denies permission to raise the claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so is a distinction without a difference. In saying this, we do not (any more than we did in Martinez) seek to encourage States to tailor direct appeals so that they provide a fuller op- portunity to raise ineffective-assistance-of-trial-counsel claims. That is a matter for the States to decide. And, as we have said, there are often good reasons for hearing the claim initially during collateral proceedings. III For these reasons, we conclude that where, as here, state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal, our holding in Martinez applies: “[A] procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U. S., at ___ (slip op., at 15). Given this holding, Texas submits that its courts should be permitted, in the first instance, to decide the merits of Trevino’s ineffective-assistance-of-trial-counsel claim. Brief for Respondent 58–60. We leave that matter to be determined on remand. Likewise, we do not decide here whether Trevino’s claim of ineffective assistance of trial counsel is substantial or whether Trevino’s initial state habeas attorney was ineffective. For these reasons we vacate the Fifth Circuit’s judgment and remand the case for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus TREVINO v. THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION certiorari to the united states court of appeals for the fifth circuit No. 11–10189. Argued February 25, 2013—Decided May 28, 2013 In Martinez v. Ryan, 566 U.S. 1, ___, this Court held that “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [State’s] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Martinez regarded a prisoner from Arizona, where state procedural law required the prisoner to raise the claim during his first state collateral review proceeding. Ibid. This case regards a prisoner from Texas, where state procedural law does not require a defendant to raise his ineffective-assistance-of-trial-counsel claim on collateral review. Rather, Texas law appears to permit a prisoner to raise such a claim on direct review, but the structure and design of the Texas system make it virtually impossible for a prisoner to do so. The question presented in this case is whether, despite this difference, the rule set out in Martinez applies in Texas. Petitioner Trevino was convicted of capital murder in Texas state court and sentenced to death after the jury found insufficient mitigating circumstances to warrant a life sentence. Neither new counsel appointed for his direct appeal nor new counsel appointed for state collateral review raised the claim that Trevino’s trial counsel provided ineffective assistance during the penalty phase by failing to adequately investigate and present mitigating circumstances. When that claim was finally raised in Trevino’s federal habeas petition, the District Court stayed the proceedings so Trevino could raise it in state court. The state court found the claim procedurally defaulted because of Trevino’s failure to raise it in his initial state postconviction proceedings, and the federal court then concluded that this failure was an independent and adequate state ground barring the federal courts from considering the claim. The Fifth Circuit affirmed. Its decision predated Martinez, but that court has since concluded that Martinez does not apply in Texas because Martinez’s good-cause exception applies only where state law says that a defendant must initially raise his ineffective-assistance-of-trial-counsel claim in initial state collateral review proceedings, while Texas law appears to permit a defendant to raise that claim on direct appeal. Held: Where, as here, a State’s procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective-assistance-of-trial-counsel claim on direct appeal, the exception recognized in Martinez applies. . (a) A finding that a defendant’s state law “procedural default” rests on “an independent and adequate state ground” ordinarily prevents a federal habeas court from considering the defendant’s federal constitutional claim. Coleman v. Thompson, 501 U.S. 722,729–730. However, a “prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of the federal law.” Martinez, supra, at ___. In Martinez, the Court recognized a “narrow exception” to Coleman’s statement “that an attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default.” 566 U. S., at ___. That exception allows a federal habeas court to find “cause” to excuse such default where (1) the ineffective-assistance-of-trial-counsel claim was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that the claim “be raised in an initial-review collateral proceeding.” Id., at ___. . (b) The difference between the Texas law—which in theory grants permission to bring an ineffective-assistance-of-trial-counsel claim on direct appeal but in practice denies a meaningful opportunity to do so—and the Arizona law at issue in Martinez—which required the claim to be raised in an initial collateral review proceeding—does not matter in respect to the application of Martinez. . (1) This conclusion is supported by two characteristics of Texas’ procedures. First, Texas procedures make it nearly impossible for an ineffective-assistance-of-trial-counsel claim to be presented on direct review. The nature of an ineffective-assistance claim means that the trial record is likely to be insufficient to support the claim. And a motion for a new trial to develop the record is usually inadequate because of Texas rules regarding time limits on the filing, and the disposal, of such motions and the availability of trial transcripts. Thus, a writ of habeas corpus is normally needed to gather the facts necessary for evaluating these claims in Texas. Second, were Martinez not to apply, the Texas procedural system would create significant unfairness because Texas courts in effect have directed defendants to raise ineffective-assistance-of-trial-counsel claims on collateral, rath- er than on direct, review. Texas can point to only a few cases in which a defendant has used the motion-for-a-new-trial mechanism to expand the record on appeal. Texas suggests that there are other mechanisms by which a prisoner can expand the record on appeal, but these mechanisms seem special and limited in their application, and cannot overcome the Texas courts’ own well-supported determination that collateral review normally is the preferred procedural route for raising an ineffective-assistance-of-trial-counsel claim. Respondent also argues that there is no equitable problem here, where appellate counsel’s failure to bring a substantial ineffective-assistance claim on direct appeal may constitute cause to excuse the procedural default, but respondent points to no case in which such a failure by appellate counsel has been deemed constitutionally ineffective. . (2) The very factors that led this Court to create a narrow exception to Coleman in Martinez similarly argue for applying that exception here. The right involved—adequate assistance of trial counsel—is similarly and critically important. In both instances practical considerations—the need for a new lawyer, the need to expand the trial court record, and the need for sufficient time to develop the claim—argue strongly for initial consideration of the claim during collateral, not on direct, review. See Martinez, 566 U. S., at ___. In both instances failure to consider a lawyer’s “ineffectiveness” during an initial-review collateral proceeding as a potential “cause” for excusing a procedural default will deprive the defendant of any opportunity for review of an ineffective-assistance-of-trial-counsel claim. See id., at ___. Thus, for present purposes, a distinction between (1) a State that denies permission to raise the claim on direct appeal and (2) a State that grants permission but denies a fair, meaningful opportunity to develop the claim is a distinction without a difference. . 449 Fed. Appx. 415, vacated and remanded. Breyer, J., delivered the opinion for the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Alito, J., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined.

In Martinez v. Ryan, 566 U.S. 1, this Court recognized the importance of federal habeas corpus proceedings as a method for preventing individuals from being in custody in federal custody in violation of state law. The doctrine barring procedurally defaulted claims from being heard is not without exceptions. Rather, Texas law appears at first glance to permit (but not require) the defendant initially to raise an ineffective assistance of trial counsel claim in a state col- lateral review proceeding. However, the Texas structure and design make it virtually impossible (as Martinez recognized) for such a claim to be presented on direct review. . (a) The Texas procedural system, as a matter of its structure, design, and operation, does not offer most defendants a meaningful opportunity to present a claim of ineffective assistance to trial counsel on direct appeal. Martinez, supra, at ___ (slip op., at 15). And, in practical considerations, such as a need for a new lawyer, the need to expand the trial court record, and the need for sufficient time to develop the claim, there are often good reasons for hearing the claim initially during collateral proceedings. Here, where the State consequently channels initial review of this constitutional claim to collateral proceedings, a lawyer's failure to raise the ineffective assistance-of-trial-counsel claim during initial-review collateral proceedings could deprive a defendant of any review of that claim at all. Moreover, the procedural possibilities to which Texas now points seem special, limited in their application, and, as far as this Court can tell, rarely used. This is not to say that there is no equitable problem to be solved in Texas because if counsel fails to bring such a substantial claim on direct review, the ineffectiveness of appellate counsel may constitute cause to excuse the procedural default. See, e.g., Robinson v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 2000)). Martinez, at ___, at 15. Although, in Martinez, the court recognized that Martinez had said that its good-cause exception applies where state law says that a criminal defendant must initially raise his assistance of counsel in initial state collateral review proceedings, it did not say explicitly that the defendant had to initially raise the claim in state collateral review proceedings. Rather Texas law on its face appears to permit, but not require, the defendant to raise such claim. Pp. 475. (b) Where, as here, state procedural framework, by reason of its design, makes it highly unlikely, in a typical case, that a defendant will have a meaningful attempt to raise a ineffective assistance claim of the trial counsel of the opposing party on direct, rather than on collateral, review, this holding in Martinez applies.. 687 F. 3d, vacated and remanded. Reversed. JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR joined, concurred in the judgment.

2012_11-192

https://www.oyez.org/cases/2012/11-192

. The Little Tucker Act, 28 U. S. C. §1346(a)(2), provides that “[t]he district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of . . . [a]ny. . . civil action or claim against the United States, not exceeding $10,000 in amount, founded . . . upon . . . any Act of Congress.” We consider whether the Little Tucker Act waives the sovereign immunity of the United States with respect to damages actions for violations of the Fair Credit Reporting Act (FCRA), 15 U. S. C. §1681 et seq. I The Fair Credit Reporting Act has as one of its purposes to “protect consumer privacy.” Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 52 (2007); see 84Stat. 1128, 15 U. S. C. §1681. To that end, FCRA provides, among other things, that “no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.” §1681c(g)(1) (emphasis added). The Act defines “person” as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.” §1681a(b). FCRA imposes civil liability for willful or negligent noncompliance with its requirements: “Any person who willfully fails to comply” with the Act “with respect to any consumer,” “is liable to that consumer” for actual damages or damages “of not less than $100 and not more than $1,000,” as well as punitive damages, attorney’s fees, and costs. §1681n(a); see also §1681o (civil liability for negligent noncompliance). The Act includes a jurisdictional provision, which provides that “[a]n action to enforce any liability created under this subchapter may be brought in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction” within the earlier of “2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability” or “5 years after the date on which the violation that is the basis for such liability occurs.” §1681p. Respondent James X. Bormes is an attorney who filed a putative class action against the United States in the United States District Court for the Northern District of Illinois seeking damages under FCRA. Bormes alleged that he paid a $350 federal-court filing fee for a client using his own credit card on Pay.gov, an Internet-based system used by federal courts and dozens of federal agencies to process online payment transactions. According to Bormes, his Pay.gov electronic receipt included the last four digits of his credit card, in addition to its expiration date, in willful violation of §1681c(g)(1). He claimed that he and thousands of similarly situated persons were entitled to recover damages under §1681n, and asserted jurisdiction under §1681p, as well as under the Little Tucker Act, 28 U. S. C. §1346(a)(2). The District Court dismissed the suit, holding that FCRA does not contain the explicit waiver of sovereign immunity necessary to permit a damages suit against the United States. 638 F. Supp. 2d 958, 962 (ND Ill. 2009). The court did not address the Little Tucker Act as an asserted basis for jurisdiction. Respondent appealed to the Federal Circuit, which has exclusive jurisdiction “of an appeal from a final decision of a district court of the United States . . . if the jurisdiction of that court was based, in whole or in part, on” the Little Tucker Act. 28 U. S. C. §1295(a)(2). Arguing that the Little Tucker Act’s jurisdictional grant did not apply to respondent’s suit, the Government moved to transfer the appeal to the Seventh Circuit. The Federal Circuit denied the transfer motion and went on to vacate the District Court’s decision. Without deciding whether FCRA itself contained the requisite waiver of sovereign immunity, the court held that the Little Tucker Act provided the Government’s consent to suit for violation of FCRA. The court explained that the Little Tucker Act applied because FCRA “ ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” 626 F.3d 574, 578 (2010) (quoting United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003)). This “fair interpretation” rule, the court explained, “demands a showing ‘demonstrably lower’ than the initial waiver of sovereign immunity” contained in the Little Tucker Act itself. 626 F. 3d, at 578. The court reasoned that FCRA satisfied the “fair interpretation” rule because its damages provision applies to “any person” who willfully violates its requirements, 15 U. S. C. §1681n(a), and the Act elsewhere defines “person” to include “any . . . government,” §1681a(b). 626 F. 3d, at 580. The Federal Circuit remanded to the District Court for further proceedings. We granted certiorari, 565 U. S. ___ (2012). II Sovereign immunity shields the United States from suit absent a consent to be sued that is “ ‘unequivocally expressed.’ ” United States v. Nordic Village, Inc., 503 U.S. 30, 33–34 (1992) (quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95 (1990); some internal quotation marks omitted). The Little Tucker Act is one statute that unequivocally provides the Federal Government’s consent to suit for certain money-damages claims. United States v. Mitchell, 463 U.S. 206, 216 (1983) (Mitchell II). Subject to exceptions not relevant here, the Little Tucker Act provides that “district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims,” of a “civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U. S. C. §1346(a)(2).[1] The Little Tucker Act and its companion statute, the Tucker Act, §1491(a)(1),[2] do not themselves “creat[e] substantive rights,” but “are simply jurisdictional provisions that operate to waive sovereign immunity for claims premised on other sources of law.” United States v. Navajo Nation, 556 U.S. 287, 290 (2009). Bormes argues that whether or not FCRA itself unam-biguously waives sovereign immunity, the Little Tucker Act authorizes his FCRA damages claim against the United States. The question, then, is whether a damages claim under FCRA “falls within the terms of the Tucker Act,” so that “the United States has presumptively consented to suit.” Mitchell II, supra, at 216. It does not. Where, as in FCRA, a statute contains its own self-executing remedial scheme, we look only to that statute to determine whether Congress intended to subject the United States to dam- ages liability. A The Court of Claims was established, and the Tucker Act enacted, to open a judicial avenue for certain mone-tary claims against the United States. Before the creation of the Court of Claims in 1855, see Act of Feb. 24, 1855 (1855 Act), ch. 122, §1, 10Stat. 612, it was not uncommon for statutes to impose monetary obligations on the United States without specifying a means of judicial enforcement.[3] As a result, claimants routinely petitioned Congress for private bills to recover money owed by the Federal Government. See Mitchell II, supra, at 212 (citing P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 98 (2d ed. 1973)). As this individualized legislative process became increasingly burdensome for Congress, the Court of Claims was created “to relieve the pressure on Congress caused by the volume of private bills.” Glidden Co. v. Zdanok, 370 U.S. 530, 552 (1962) (plurality opinion). The 1855 Act authorized the Court of Claims to hear claims against the United States “founded upon any law of Congress,” §1, 10Stat. 612, and thus allowed claimants to sue the Federal Government for monetary relief premised on other sources of law. (Specialized legislation remained necessary to authorize the payments approved by the Court of Claims until 1863, when Congress empowered the court to enter final judgments. See Act of Mar. 3, 1863 (1863 Act), ch. 92, 12Stat. 765; Mitchell II, supra, at 212–214 (recounting the history of the Court of Claims)). Enacted in 1887, the Tucker Act was the successor statute to the 1855 and 1863 Acts and replaced most of their provisions. See Act of Mar. 3, 1887 (1887 Act), ch. 359, 24Stat. 505; Mitchell II, supra, at 213–214. Like the 1855 Act before it, the Tucker Act provided the Federal Government’s consent to suit in the Court of Claims for claims “founded upon . . . any law of Congress.” 1887 Act §1, 24Stat. 505. Section 2 of the 1887 Act created concurrent jurisdiction in the district courts for claims of up to $1,000. The Tucker Act’s jurisdictional grant, and accompanying immunity waiver, supplied the missing ingredient for an action against the United States for the breach of monetary obligations not otherwise judicially enforceable.[4] B The Tucker Act is displaced, however, when a law assertedly imposing monetary liability on the United States contains its own judicial remedies. In that event, the specific remedial scheme establishes the exclusive framework for the liability Congress created under the statute. Because a “precisely drawn, detailed statute pre-empts more general remedies,” Hinck v. United States, 550 U.S. 501, 506 (2007) (quoting EC Term of Years Trust v. United States, 550 U.S. 429, 434 (2007); internal quotation marks omitted), FCRA’s self-executing remedial scheme supersedes the gap-filling role of the Tucker Act. We have long recognized that an additional remedy in the Court of Claims is foreclosed when it contradicts the limits of a precise remedial scheme. In Nichols v. United States, 7 Wall. 122, 131 (1869), the issue was whether the 1855 Act authorized suit in the Court of Claims for improper assessment of duties on imported liquor that had already been paid without protest. The Court held that it did not. The revenue laws already provided a remedy: An aggrieved merchant could sue to recover the tax, but only after paying the duty under protest. Act of Feb. 26, 1845, ch. 22, 5Stat. 727. The Court rejected the supposition that “Congress, after having carefully constructed a revenue system, with ample provisions to redress wrong, intended to give to the taxpayer and importer a further and different remedy.” 7 Wall., at 131. Permitting suit under the 1855 Act, the Court concluded, would frustrate congressional intent with respect to the specific remedial scheme already in place. The 1855 Act was confined to a gap-filling role. As we said in a later case, “the general laws which govern the Court of Claims may be resorted to for relief” only because “[n]o special remedy has been provided” to enforce a payment to which the claimant was entitled. United States v. Kaufman, 96 U.S. 567, 569 (1878). Where the “liability is one created by statute,” the “special remedy provided by the same statute is exclusive.” Ibid. Our more recent cases have consistently held that statutory schemes with their own remedial framework exclude alternative relief under the general terms of the Tucker Act. See, e.g., Hinck, supra; United States v. Fausto, 484 U.S. 439 (1988); United States v. Erika, Inc., 456 U.S. 201 (1982). Respondent contends that in each of those cases Congress had unambiguously demonstrated its intent to foreclose additional review by the Court of Federal Claims—whereas here, no similar intent to preclude Tucker Act jurisdiction is apparent. See Brief for Respondent 27–28. But our precedents collectively stand for a more basic proposition: Where a specific statutory scheme provides the accoutrements of a judicial action, the metes and bounds of the liability Congress intended to create can only be divined from the text of the statute itself.[5] In Hinck, for example, we held that the Tax Court provides the exclusive forum for suits under 26 U. S. C. §6404(h), which authorizes judicial review of the Secre-tary’s decision not to abate interest under §6404(e)(1). We relied on “our past recognition that when Congress enacts a specific remedy when no remedy was previously recognized . . . the remedy provided is generally regarded as exclusive.” 550 U. S., at 506. Section 6404(h), we concluded, “fits the bill”: it “provides a forum for adjudication, a limited class of potential plaintiffs, a statute of limitations, a standard of review, and authorization for judicial relief.” Ibid. It did not matter that Congress “fail[ed] explicitly to define the Tax Court’s jurisdiction as exclusive.” Ibid. We found it “quite plain that the terms of §6404(h)—a ‘precisely drawn, detailed statute’ filling a perceived hole in the law—control all requests for review of §6404(e)(1) determinations.” Ibid. Like §6404(h), FCRA creates a detailed remedial scheme. Its provisions “set out a carefully circumscribed, time-limited, plaintiff-specific” cause of action, and “also precisely define the appropriate forum.” Id., at 507. It authorizes aggrieved consumers to hold “any person” who “willfully” or “negligent[ly]” fails to comply with the Act’s requirements liable for specified damages. 15 U. S. C. §§1681n(a), 1681o. Claims to enforce liability must be brought within a specified limitations period, §1681p, and jurisdiction will lie “in any appropriate United States dis- trict court, without regard to the amount in controversy, or in any other court of competent jurisdiction.” Ibid. Without resort to the Tucker Act, FCRA enables claimants to pursue in court the monetary relief contemplated by the statute. Plaintiffs cannot, therefore, mix and match FCRA’s provisions with the Little Tucker Act’s immunity waiver to create an action against the United States. Since FCRA is a detailed remedial scheme, only its own text can determine whether the damages liability Congress crafted extends to the Federal Government. To hold otherwise—to permit plaintiffs to remedy the absence of a waiver of sovereign immunity in specific, detailed statutes by pleading general Tucker Act jurisdiction—would transform the sovereign-immunity landscape. The Federal Circuit was therefore wrong to conclude that the Tucker Act justified applying a “less stringent” sovereign-immunity analysis to FCRA than our cases require. 626 F. 3d, at 582. It distorted our case law in applying to FCRA the immunity-waiver standard we expressed in White Mountain Apache Tribe, 537 U. S., at 472: whether the statute “ ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” 626 F. 3d, at 578. That is the test for determining whether a statute that imposes an obligation but does not provide the elements of a cause of action qualifies for suit under the Tucker Act—more specifically, whether the failure to perform an obligation undoubtedly imposed on the Federal Government creates a right to monetary relief. See White Mountain Apache Tribe, supra; Mitchell II, 463 U.S. 206. That test is not relevant when a “mandate of compensation” is contained in a statute that provides a detailed judicial remedy against those who are subject to its requirements. FCRA is such a statute. By using the “fair interpretation” test to determine whether FCRA’s civil liability provisions apply to the United States, the Federal Circuit directed the test to a purpose for which it was not designed and leapfrogged the threshold concern that the Tucker Act cannot be superimposed on an existing remedial scheme. * * * We do not decide here whether FCRA itself waives the Federal Government’s immunity to damages actions under §1681n. That question is for the Seventh Circuit to consider once this case is transferred to it on remand. But whether or not FCRA contains the necessary waiver of immunity, any attempt to append a Tucker Act remedy to the statute’s existing remedial scheme interferes with its intended scope of liability. The judgment of the Court of Appeals is vacated, and the case remanded with instructions to transfer the case to the United States Court of Appeals for the Seventh Circuit for further proceedings consistent with this opinion. It is so ordered. Notes 1 It is undisputed that this class action satisfied the Little Tucker Act’s amount-in-controversy limitation. We have held that to require only that the “claims of individual members of the clas[s] do not exceed $10,000.” United States v. Will, 449 U.S. 200, 211, n. 10 (1980). 2 Whereas the Little Tucker Act creates jurisdiction in the district courts concurrent with the Court of Federal Claims for covered claims of $10,000 or less, the Tucker Act assigns jurisdiction to the Court of Federal Claims regardless of monetary amount. As relevant here, the scope of the two statutes is otherwise the same. The third statute in the Tucker Act trio, the Indian Tucker Act, 28 U. S. C. §1505, “confers a like waiver for Indian tribal claims that ‘otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe.’ ” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (quoting §1505). 3 For example, the Act of March 30, 1814, provided that every noncommissioned U. S. army officer who “may be captured by the enemy, shall be entitled to receive during his captivity . . . the same pay, subsistence, and allowance to which he may be entitled whilst in the actual service of the United States.” §14, 3Stat. 115, repealed in 1962 by Pub. L. 87–649, §14, 76Stat. 498. The 1814 Act clearly “command[ed] the payment of a specified amount of money by the United States,” Bowen v. Massachusetts, 487 U.S. 879, 923 (1988) (Scalia, J., dissenting), but did not designate a means of judicial relief in the event the Government failed to pay. 4 For purposes of this case, the current versions of the Tucker Act and Little Tucker Act resemble the 1887 Act. Compare 28 U. S. C. §1491(a)(1) (permitting suits “founded . . . upon . . . any Act of Congress”) with Tucker Act §1, 24Stat. 505 (permitting suits “founded upon . . . any law of Congress, except for pensions”). The prior functions of the Court of Claims are now divided between the Court of Federal Claims at the trial level and the Federal Circuit at the appellate. 5 We therefore need not resolve the parties’ disagreement about whether certain inconsistencies between the Little Tucker Act and FCRA can be reconciled. Compare 28 U. S. C. §1346(a)(2) (no claims in district court “exceeding $10,000 in amount”) with 15 U. S. C. §1681p (claims may be brought in district court “without regard to the amount in controversy”); compare 28 U. S. C. §2501 (claims must be filed in the Court of Federal Claims within six years of accrual) with 15 U. S. C. §1681p (claims under FCRA must be filed within the earlier of two years after discovery or five years after the alleged violation). Reconcilable or not, FCRA governs. The Government also contends that the Tucker Act does not apply because §§1681n and 1681o sound in tort. We do not decide the merits of that alternative argument.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UNITED STATES v. BORMES certiorari to the united states court of appeals for the federal circuit No. 11–192. Argued October 2, 2012—Decided November 13, 2012 Respondent Bormes, an attorney, filed suit against the Federal Government, alleging that the electronic receipt he received when paying his client’s federal-court filing fee on Pay.gov included the last four digits of his credit card number and the card’s expiration date, in willful violation of the Fair Credit Reporting Act (FCRA), 15 U. S. C. §1681 et seq. He sought damages under §1681n and asserted jurisdiction under §1681p, as well as under the Little Tucker Act, which grants district courts “original jurisdiction, concurrent with the United States Court of Federal Claims, of . . . [a]ny. . . civil action or claim against the United States, not exceeding $10,000 in amount, founded . . . upon . . . any Act of Congress,” 28 U. S. C. §1346(a)(2). In dismissing the suit, the District Court held that FCRA did not explicitly waive the Federal Government’s sovereign immunity. Bormes appealed to the Federal Circuit, which vacated the District Court’s decision, holding that the Little Tucker Act provided the Government’s consent to suit because the underlying statute—FCRA—could fairly be interpreted as mandating a right of recovery in damages. Held: The Little Tucker Act does not waive the Government’s sovereign immunity with respect to FCRA damages actions. . (a) The Little Tucker Act and its companion statute, the Tucker Act, provide the Federal Government’s consent to suit for certain money-damages claims “premised on other sources of law,” United States v. Navajo Nation, 556 U.S. 287, 290. The general terms of the Tucker Acts are displaced, however, when a law imposing monetary liability has its own judicial remedies. In that event, the specific remedial scheme establishes the exclusive framework for determining the scope of liability under the statute. See, e.g., Hinck v. United States, 550 U.S. 501. . (b) FCRA is such a statute. Its detailed remedial scheme sets “out a carefully circumscribed, time-limited, plaintiff-specific” cause of action, and “also precisely define[s] the appropriate forum,” 550 U. S., at 507. FCRA authorizes aggrieved consumers to hold “any person” who “willfully” or “negligent[ly]” fails to comply with the Act’s requirements liable for specified damages, 15 U. S. C. §§1681n(a), 1681o; requires enforcement claims to be brought within a specified limitations period, §1681p; and provides that jurisdiction will lie “in any appropriate United States district court, without regard to the amount in controversy,” ibid. Because FCRA enables claimants to pursue monetary relief in court without resort to the Tucker Act, only its own text can determine whether Congress unequivocally intended to impose the statute’s damages liability on the Federal Government. . 626 F.3d 574, vacated and remanded. Scalia, J., delivered the opinion for a unanimous Court.

The Fair Credit Reporting Act (FCRA) provides that no person that accepts credit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction. The Act also imposes civil liability for willful or negligent noncompliance with its requirements. Cf. Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 52. The Little Tucker Act (Little Tucker Act), which provides that district courts shall have original jurisdiction of a civil action against the United States, not exceeding $10,000 in amount, founded upon any Act of Congress, provides that such action may be brought in any appropriate district court, without regard to the amount in controversy, within the earlier of 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability. Respondent Bormes, an attorney who filed a putative class action in Federal District Court seeking damages under FCRA, claimed that he and others were entitled to recover damages under §1681n(a) and asserted jurisdiction under §§1681p, as well as the Tucker Act, 28 U. S. C. §1346(a)(2). The District Court dismissed the suit, holding that FCRA does not contain the explicit waiver of sovereign immunity necessary to permit a damages suit against the Government. The Court of Appeals held that the District Court did not apply to the transfer of respondent sovereign immunity to the Federal Circuit, and denied the transfer. Arguing that the Court of Federal Claims had not granted the transfer, the court denied the motion to vacate the transfer on the requisite waiver motion, and the court reasoned that the Act satisfied the "fair interpretation" rule because its damages provision applies to any person who willfully violates its requirements, whereas the Tucker Act defines a person to include any government. Held: The Tucker Act does not authorize a damages claim against the United States. Where, as here, a statute contains its own self-executing remedial scheme, the metes and bounds of the liability Congress intended to create can only be divined from the text of the statute itself. See, e.g., Hinck, supra, at 212. . 626 F. 3d 574, vacated and remanded. JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE REHNQUIST join, concurring in the judgment. delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined, post, p..

2012_12-167

https://www.oyez.org/cases/2012/12-167

. This case concerns Rule 11 of the Federal Rules of Criminal Procedure, which governs guilty pleas. Two provisions of that rule are key here. The first, Rule 11(c)(1), instructs that “[t]he court must not participate in [plea] discussions.” The second, Rule 11(h), states: “A variance from the requirements of th[e] rule is harmless error if it does not affect substantial rights.” Rule 52(a), which covers trial court errors generally, similarly prescribes: “Any error . . . that does not affect substantial rights must be disregarded.” Anthony Davila, respondent here, entered a guilty plea to conspiracy to defraud the United States by filing false income tax returns. He maintains that he did so because a U. S. Magistrate Judge, at a pre-plea in camera hearing and in flagrant violation of Rule 11(c)(1), told him his best course, given the strength of the Government’s case, was to plead guilty. Three months later, Davila entered a plea on advice of counsel. The hearing on Davila’s plea, conducted by a U. S. District Judge, complied in all respects with Rule 11. The question presented is whether, as the Court of Appeals for the Eleventh Circuit held, the violation of Rule 11(c)(1) by the Magistrate Judge warranted automatic vacatur of Davila’s guilty plea. We hold that Rule 11(h) controls. Under the inquiry that Rule instructs, vacatur of the plea is not in order if the record shows no prejudice to Davila’s decision to plead guilty. I In May 2009, a federal grand jury in the Southern District of Georgia returned a 34-count indictment against respondent Anthony Davila. The indictment charged that Davila filed over 120 falsified tax returns, receiving over $423,000 from the United States Treasury as a result of his fraudulent scheme. In January 2010, Davila sent a letter to the District Court expressing dissatisfaction with his court-appointed attorney and requesting new counsel. His attorney, Davila complained, offered no defensive strategy, “ ‘never mentioned a defense at all,’ ” but simply advised that he plead guilty.[1] In response to Davila’s letter, a U. S. Magistrate Judge held an in camera hearing at which Davila and his attorney, but no representative of the United States, appeared. At the start of the hearing, the Magistrate Judge told Davila that he was free to represent himself, but would not get another court-appointed attorney. See App. 148. Addressing Davila’s complaint that his attorney had advised him to plead guilty, the Magistrate Judge told Davila that “oftentimes . . . that is the best advice a lawyer can give his client.” Id., at 152. “In view of whatever the Government’s evidence in a case might be,” the judge continued, “it might be a good idea for the Defendant to accept responsibility for his criminal conduct[,] to plead guilty[,] and go to sentencing with the best arguments . . . still available [without] wasting the Court’s time, [and] causing the Government to have to spend a bunch of money empanelling a jury to try an open and shut case.” Ibid. As to Davila’s objection that his attorney had given him no options other than pleading guilty, the Magistrate Judge commented: “[T]here may not be a viable defense to these charges.” Id., at 155. The judge then urged Davila to cooperate in order to gain a downward departure from the sentence indicated by the Federal Sentencing Guidelines. “[T]ry to understand,” he counseled, “the Government, they have all of the marbles in this situation and they can file that . . . motion for [a] downward departure from the guidelines if they want to, you know, and the rules are constructed so that nobody can force them to file that [motion] for you. The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means you’ve got to go to the cross. You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.” Id., at 159–160. Davila’s Sentencing Guidelines range, the Magistrate Judge said, would “probably [be] pretty bad because [his] criminal history score would be so high.” Id., at 160. To reduce his sentencing exposure, the Magistrate Judge suggested, Davila could “cooperate with the Government in this or in other cases.” Ibid. As the hearing concluded, the judge again cautioned that “to get the [sentence] reduction for acceptance [of responsibility],” Davila had to “come to the cross”: “[T]hat two- or three-level reduction for acceptance is something that you have the key to and you can ensure that you get that reduction in sentence simply by virtue of being forthcoming and not trying to make yourself look like you really didn’t know what was going on. . . . You’ve got to go [to the cross] and you’ve got to tell it all, Brother, and convince that probation officer that you are being as open and honest with him as you can possibly be because then he will go to the [D]istrict [J]udge and he will say, you know, that Davila guy, he’s got a long criminal history but when we were in there talking about this case he gave it all up so give him the two-level, give him the three-level reduction.” Id., at 160–161. Nearly a month after the in camera hearing, Davila filed a motion demanding a speedy trial. The District Court set a trial date for April 2010, which was continued at the Government’s request. In May 2010, more than three months after the hearing before the Magistrate Judge, Davila agreed to plead guilty to the conspiracy charge in exchange for dismissal of the other 33 counts charged in the indictment. Davila entered his guilty plea before a U. S. District Judge six days later. Under oath, Davila stated that he had not been forced or pressured to plead guilty. Id., at 122. Davila did not mention the in camera hearing before the Magistrate Judge, and the record does not indicate whether the District Judge was aware that the pre-plea hearing had taken place. See id., at 82–99, 115–125. Before he was sentenced, Davila moved to vacate his plea and to dismiss the indictment. The reason for his plea, Davila asserted, was “strategic.” Id., at 58. Aware that the prosecutor had a duty to disclose all information relevant to the court’s determination whether to accept the plea bargain, he stated that his purpose in entering the plea was to force the Government to acknowledge timeframe errors made in the indictment. Id., at 58–59. By pleading guilty, Davila said, he would make the court aware that the prosecution was “vindictive.” Id., at 59. The District Judge denied Davila’s motion. In so ruling, the court observed that, at the plea hearing, Davila had affirmed that he was under no “pressure, threats, or promises, other than promises [made] by the government in the plea agreement.” Id., at 70. Furthermore, he had been fully advised of his rights and the consequences of his plea. Id., at 71. It was therefore clear to the District Judge, who had himself presided at the plea hearing, that Davila’s guilty plea “was knowing and voluntary.” Id., at 72. In view of Davila’s extensive criminal history, the court sentenced him to a prison term of 115 months. Id., at 75–77. Again, neither Davila nor the court mentioned the in camera hearing conducted by the Magistrate Judge. Id., at 55–80. On appeal, Davila’s court-appointed attorney sought leave to withdraw from the case, asserting, in a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), that there were no issues of arguable merit to be raised on Davila’s behalf. The Eleventh Circuit denied counsel’s motion without prejudice to renewal. App. to Pet. for Cert. 6a–8a. It did so based on a discovery the appeals court made upon “independent review” of the record. That review “revealed an irregularity in the statements of a magistrate judge, made during a hearing prior to Davila’s plea, which appeared to urge [him] to cooperate and be candid about his criminal conduct to obtain favorable sentencing consequences.” Id., at 7a. The court requested counsel to address whether the “irregularity” constituted reversible error under Federal Rule of Criminal Procedure 11(c)(1). Id., at 7a–8a. Following the court’s instruction, counsel filed a brief arguing that Davila’s plea should be set aside due to the Magistrate Judge’s comments. In response, the Government conceded that those comments violated Rule 11(c)(1). Even so, the Government urged, given the three-month gap between the comments and the plea, and the fact that a different judge presided over Davila’s plea and sentencing hearings, no adverse effect on Davila’s substantial rights could be demonstrated. Pursuant to Circuit precedent, the appeals court held that the Rule 11(c)(1) violation required automatic vacatur of Davila’s guilty plea. Under the Circuit’s “bright line rule,” the court explained, there was no need to inquire whether the error was, in fact, prejudicial. 664 F.3d 1355, 1359 (CA11 2011) (per curiam). We granted certiorari to resolve a Circuit conflict concerning the consequences of a Rule 11(c)(1) violation. 568 U. S. ___ (2013).[2] II Rule 11(c)(1)’s prohibition of judicial involvement in plea discussions was introduced as part of the 1974 Amendment to the Rule. See Advisory Committee’s 1974 Note on Subd. (e)(1) of Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 1420 (1976 ed.) (hereinafter Advisory Committee’s 1974 Note).[3] As the Advisory Committee’s note explains, commentators had observed, prior to the amendment, that judicial participation in plea negotiations was “common practice.” Id., at 1420 (citing D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial 32–52, 78–104 (1966); Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U. Pa. L. Rev. 865, 891, 905 (1964)). Nonetheless, the prohibition was included out of concern that a defendant might be induced to plead guilty rather than risk displeasing the judge who would preside at trial. Advisory Committee’s 1974 Note 1420. Moreover, the Advisory Committee anticipated, barring judicial involvement in plea discussions would facilitate objective assessments of the voluntariness of a defendant’s plea. Ibid. Added as a part of the 1983 Amendment, Rule 11(h) provides that “a variance from the requirements of [Rule 11] is harmless error if it does not affect substantial rights.” Subsection (h), the Advisory Committee’s note informs, “rejects the extreme sanction of automatic reversal” for Rule 11 violations and clarifies that Rule 52(a)’s harmlessness inquiry applies to plea errors. Advisory Committee’s 1983 Note on Subd. (h) of Fed. Rule Crim. Proc. 11, 18 U. S. C. App., pp. 749, 751 (1988 ed.) (hereinafter Advisory Committee’s 1983 Note). The addition of subsection (h) was prompted by lower court over-readings of McCarthy v. United States, 394 U.S. 459 (1969). That decision called for vacatur of a guilty plea accepted by the trial court without any inquiry into the defendant’s understanding of the nature of the charge. The Advisory Committee explained that subsection (h) would deter reading McCarthy “as meaning that the general harmless error provision in Rule 52(a) cannot be utilized with respect to Rule 11 proceedings.” Advisory Committee’s 1983 Note 751. Substantial compliance with Rule 11 would remain the requirement, but the new subsection would guard against exalting “ceremony . . . over substance.” Id., at 749. For trial court errors generally, Rule 52(a) states that “[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Rule 11(h), as just noted, was designed to make it clear that Rule 11 errors are not excepted from that general Rule. Advisory Committee’s 1983 Note 749. Rule 52, in addition to stating the “harmless-error rule” in subsection (a), also states, in subsection (b), the “plain-error rule,” applicable when a defendant fails to object to the error in the trial court. Rule 52(b) states: “A plain error that affects substantial rights may be considered even though it was not brought to the [trial] court’s attention.” When Rule 52(a)’s “harmless-error rule” governs, the prosecution bears the burden of showing harmlessness. See United States v. Vonn, 535 U.S. 55, 62 (2002). When Rule 52(b) controls, the defendant must show that the error affects substantial rights. Ibid. In two cases, United States v. Vonn, 535 U.S. 55, and United States v. Dominguez Benitez, 542 U.S. 74 (2004), this Court clarified that a Rule 11 error may be of the Rule 52(a) type, or it may be of the Rule 52(b) kind, depending on when the error was raised. In Vonn, the judge who conducted the plea hearing failed to inform the defendant, as required by Rule 11, that he would have “the right to the assistance of counsel” if he proceeded to trial. See Fed. Rule Crim. Proc. 11(c)(3) (2000).[4] The defendant first objected to the omission on appeal. We addressed the question “whether a defendant who lets Rule 11 error pass without objection in the trial court must carry the burdens of Rule 52(b) or whether even the silent defendant can put the Government to the burden of proving the Rule 11 error harmless.” 535 U. S., at 58. The Defendant in Vonn had urged that “importation of [Rule 52(a)’s] harmless-error standard into Rule 11(h) without its companion plain-error rule was meant to eli- minate a silent defendant’s burdens under . . . Rule 52(b).” Id., at 63. This Court rejected the defendant’s argu- ment and held that “a silent defendant has the burden to satisfy the plain-error rule.” Id., at 59. In Dominguez Benitez, the Court addressed what the silent defendant’s burden entailed. The judge presiding at the plea hearing in that case failed to warn the defendant, as Rule 11(c)(3)(B) directs, that he would not be permitted to withdraw his guilty plea even if the court did not ac- cept the plea-bargained sentencing recommendation. 542 U. S., at 79. As in Vonn, the error was first raised on appeal. 542 U. S., at 79. This Court again held that Rule 52(b) was controlling. Id., at 82. Stressing “the particular importance of the finality of guilty pleas,” ibid., the Court prescribed the standard a defendant complaining of a Rule 11 violation must meet to show “plain error”: “[A] defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea.” Id., at 83. III In Davila’s case, the Government acknowledged in this Court, as it did before the Eleventh Circuit, that the Magistrate Judge violated Rule 11(c)(1) by improperly participating in plea discussions. As the excerpts from the in camera hearing, set out supra, at 2–4, show, there is no room for doubt on that score. The Magistrate Judge’s repeated exhortations to Davila to “tell it all” in order to obtain a more favorable sentence, see App. 157–160, were indeed beyond the pale. Did that misconduct in itself demand vacatur of Davila’s plea, as the Eleventh Circuit held, or, as the Government urges, must a reviewing court consider all that transpired in the trial court in order to assess the impact of the error on the defendant’s decision to plead guilty? We hold that the latter inquiry is the one the Rules and our precedent require. Davila contends that automatic vacatur, while inappropriate for most Rule 11 violations, should attend conduct banned by Rule 11(c)(1). He distinguishes plea-colloquy omissions, i.e., errors of the kind involved in Vonn and Dominguez Benitez, from pre-plea exhortations to admit guilt. Plea-colloquy requirements come into play after a defendant has agreed to plead guilty. The advice and questions now specified in Rules 11(b) and 11(c)(3)(B), Davila observes, are designed to ensure that a defendant’s plea is fully informed and intelligently made. Errors or omissions in following Rule 11’s plea-colloquy instructions, Davila recognizes, are properly typed procedural, and are therefore properly assessed under the harmless-error instruction of Rule 11(h). Rule 11(c)(1)’s prohibition on judicial participation in plea discussions, in contrast, becomes operative before a defendant has decided whether to plead guilty or to stand trial. The Rule serves a more basic purpose, Davila urges, one “central to the proper functioning of the criminal process.” Brief for Respondent 18. Therefore, “the remedial analysis that applies to violations of . . . procedural provisions does not and should not apply to th[is] distinct class of error.” Id., at 16. Violations of Rule 11(c)(1), Davila elaborates, heighten the risk that a defendant’s plea will be coerced or pressured, and not genuinely an exercise of free will. When a judge conveys his belief that pleading guilty would be to a defendant’s advantage, Davila adds, the judge becomes, in effect, a second prosecutor, depriving the defendant of the impartial arbiter to which he is entitled. “Rule 11(c)(1)’s bright-line prohibition on judicial exhortations to plead guilty,” Davila concludes, is “no mere procedural technicality,” id., at 21, for such exhortations inevitably and incurably infect the ensuing pretrial process. Id., at 43. Nothing in Rule 11’s text, however, indicates that the ban on judicial involvement in plea discussions, if dishonored, demands automatic vacatur of the plea without regard to case-specific circumstances. The prohibition appears in subsection (c), headed “Plea Agreement Procedure.” See Fed. Rule Crim. Proc. 11(c). That subsection affirms that the prosecution and defense attorney (or the defendant when proceeding pro se) “may discuss and reach a plea agreement.” Rule 11(c)(1). Further, Rule 11(c) describes permissible types of plea agreements, see Rule 11(c)(1)(A)–(C), and addresses the court’s consideration, acceptance, or rejection of a proffered agreement, see Rule 11(c)(3)–(5). In recommending the disallowance of judicial participation in plea negotiations now contained in subsection (c)(1), the Advisory Committee stressed that a defendant might be induced to plead guilty to avoid antagonizing the judge who would preside at trial. See Advisory Committee’s 1974 Note 1420. But the Committee nowhere suggested that violation of Rule 11(c)(1) is necessarily an error graver than, for example, the error in Dominguez Benitez, i.e., the failure to tell a defendant that the plea would bind him even if the sentence imposed significantly exceeded in length the term of years stated in the plea bargain. As earlier noted, see supra, at 7, the Committee pointed to commentary describing judicial engagement in plea bargaining as a once “common practice,”[5] and it observed that, in particular cases, questions may arise “[a]s to what . . . constitute[s] ‘participation.’ ” Advisory Committee’s 1974 Note 1420. In short, neither Rule 11 itself, nor the Advisory Committee’s commentary on the Rule singles out any instruction as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription (or, absent prompt objection, the plain-error rule). See supra, at 7–8. Rule 11(c)(1) was adopted as a prophylactic measure, see supra, at 7, not one impelled by the Due Process Clause or any other constitutional requirement. See 664 F. 3d, at 1359 (recognizing that Rule 11(c)(1) is part of a “prophylactic scheme”). We have characterized as “structural” “a very limited class of errors” that trigger automatic reversal because they undermine the fairness of a crim- inal proceeding as a whole. United States v. Marcus, 560 U.S. 258, ___ (2010) (slip op., at 4–5) (internal quotation marks omitted). Errors of this kind include denial of counsel of choice, denial of self-representation, denial of a public trial, and failure to convey to a jury that guilt must be proved beyond a reasonable doubt. See, e.g., United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (ranking “deprivation of the right to counsel of choice” as “ ‘structural error’ ”). Rule 11(c)(1) error does not belong in that highly exceptional category. See Neder v. United States, 527 U.S. 1, 7 (1999) (structural errors are “fundamental constitutional errors that ‘defy analysis by “harmless error” standards’ ” (quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991)). Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty might be “the best advice” a lawyer could give him, see App. 152, this case may not have warranted our attention. The automatic-vacatur rule would have remained erroneous, but the Court of Appeals’ mistake might have been inconsequential. See Tr. of Oral Arg. 47 (Counsel for the Government acknowledged that if there is a “serious [Rule 11(c)(1)] error,” and the defendant pleads guilty “right after that,” the error would likely qualify as prejudicial). Our essential point is that particular facts and circumstances matter. Three months distanced the in camera meeting with the Magistrate Judge from Davila’s appearance before the District Judge who examined and accepted his guilty plea and later sentenced him. Nothing in the record shows that the District Judge knew of the in camera hearing. After conducting an exemplary Rule 11 colloquy, the judge inquired: “Mr. Davila, has anyone forced or pressured you to plead guilty today?,” to which Davila responded: “No, sir.” App. 122. At the time of the plea hearing, there was no blending of judicial and prosecutorial functions. Given the opportunity to raise any questions he might have about matters relating to his plea, Davila simply affirmed that he wished to plead guilty to the conspiracy count. When he later explained why he elected to plead guilty, he said nothing of the Magistrate Judge’s exhortations. Instead, he called the decision “strategic,” designed to get the prosecutor to correct misinformation about the conspiracy count. Id., at 58–59, 61. Rather than automatically vacating Davila’s guilty plea because of the Rule 11(c)(1) violation, the Court of Appeals should have considered whether it was reasonably probable that, but for the Magistrate Judge’s exhortations, Davila would have exercised his right to go to trial. In answering that question, the Magistrate Judge’s comments should be assessed, not in isolation, but in light of the full record. IV The Court of Appeals did not engage in that full-record assessment here. Rather, the court cut off consideration of the particular facts of Davila’s case upon concluding that the Magistrate Judge’s comments violated Rule 11(c)(1). That pretermission kept the court from reaching case-specific arguments raised by the parties, including the Government’s assertion that Davila was not prejudiced by the Magistrate Judge’s comments, and Davila’s contention that the extraordinary circumstances his case presents should allow his claim to be judged under the harmless-error standard of Rule 52(a) rather than the plain-error standard of Rule 52(b), the rule that ordinarily attends a defendant’s failure to object to a Rule 11 violation. See supra, at 8; 664 F. 3d, at 1358 (citing United States v. Moriarty, 429 F.3d 1012, 1019 (CA11 2005) (per curiam)). Having explained why automatic vacatur of a guilty plea is incompatible with Rule 11(h), see supra, at 11–13 and this page, we leave all remaining issues to be addressed by the Court of Appeals on remand. * * * 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. Notes 1 See Brief for Appellee in No. 10–15319–I (CA11), p. 3 (quoting Record (Exh. B)). 2 Compare United States v. Bradley, 455 F.3d 453, 461 (CA4 2006) (Rule 11(c) errors are not structural and are subject to plain-error review); United States v. Pagan-Ortega, 372 F.3d 22, 27–28 (CA1 2004) (“[A] facially appealing claim of improper judicial participation in a plea proceeding prior to its solemnization in writing did not, on close analysis, demonstrate a basic unfairness and lack of integrity in the proceeding.”); United States v. Ebel, 299 F.3d 187, 191 (CA3 2002) (“[W]hen Rule 11 error has been committed in the taking of a guilty plea, we can consider the record as a whole to determine whether, under Rule 11(h), [the defendant’s] substantial rights were affected.”); United States v. Kraus, 137 F.3d 447, 457–458 (CA7 1998) (applying harmless-error review); and United States v. Miles, 10 F.3d 1135, 1140–1141 (CA5 1993) (“Rule 11(h) . . . compel[s] harmless error review.”), with 664 F.3d 1355 (CA11 2011) (this case); United States v. Anderson, 993 F.2d 1435, 1438–1439 (CA9 1993) (“Rule 11’s ban [on judicial involvement in plea negotiations is] an absolute command which admits of no exceptions.” (internal quotation marks omitted)); and United States v. Barrett, 982 F.2d 193, 196 (CA6 1992) (“This court’s role is not to weigh the judge’s statements to determine whether they were so oppressive as to abrogate the voluntariness of the plea.”). 3 As originally enacted, the prohibition of court participation in plea discussions was found in Rule 11(e)(1). See Fed. Rule Crim. Proc. 11(e)(1) (1976). 4 The requirement that the judge inform the defendant that he has “the right to be represented by counsel” is currently found in Rule 11(b)(1)(D). 5 For state provisions permitting at least some judicial participation in plea bargaining, see, e.g., N. C. Gen. Stat. Ann. §15A–1021(a) (Lexis 2011); Idaho Crim. Rule 11(f) (2012); Vt. Rule Crim. Proc. 11 Reporter’s Notes (2003 and Supp. 2012).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UNITED STATES v. DAVILA certiorari to the united states court of appeals for the eleventh circuit No. 12–167. Argued April 15, 2013—Decided June 13, 2013 Federal Rule of Criminal Procedure 11 governs guilty pleas. Rule 11(c)(1) instructs that “[t]he court must not participate in [plea] discussions,” and Rule 11(h) states that a “variance from the requirements of th[e] rule is harmless error if it does not affect substantial rights.” Rule 52(a), which covers trial court errors generally, similarly prescribes: “Any error . . . that does not affect substantial rights must be disregarded.” Respondent Davila, while under indictment on multiple tax fraud charges, wrote to the District Court, expressing dissatisfaction with his court-appointed attorney. Complaining that his attorney offered no defensive strategy, but simply advised him to plead guilty, Davila requested new counsel. A Magistrate Judge held an in camera hearing at which Davila and his attorney, but no representative of the United States, appeared. At the hearing, the Magistrate Judge told Davila that he would not get another court-appointed attorney and that his best course, given the strength of the Government’s case, was to plead guilty. More than three months later, Davila pleaded guilty to a conspiracy charge in exchange for dismissal of 33 other charges. He stated under oath before a U. S. District Judge that he had not been forced or pressured to enter the plea, and he did not mention the in camera hearing before the Magistrate Judge. Prior to sentencing, however, Davila moved to vacate his plea and dismiss the indictment, asserting that he had entered the plea for a “strategic” reason, i.e., to force the Government to acknowledge errors in the indictment. Finding that Davila’s plea had been knowing and voluntary, the District Judge denied the motion. Again, Davila said nothing of the in camera hearing conducted by the Magistrate Judge. On appeal, the Eleventh Circuit, following Circuit precedent, held that the Magistrate Judge’s violation of Rule 11(c)(1) required automatic vacatur of Davila’s guilty plea, obviating any need to inquire whether the error was prejudicial. Held: Under Rule 11(h), vacatur of the plea is not in order if the record shows no prejudice to Davila’s decision to plead guilty. . (a) Rule 11(c)(1)’s prohibition of judicial involvement in plea discussions was included in the 1974 Amendment to the Rule out of concern that a defendant might be induced to plead guilty rather than risk antagonizing the judge who would preside at trial. Rule 11(h) was added in the 1983 Amendment to make clear that Rule 11 errors are not excepted from Rule 52(a)’s harmless-error inquiry. Rule 52 also states, in subsection (b), that a “plain error that affects substantial rights may be considered even though it was not brought to the [trial] court’s attention.” When Rule 52(a) governs, the prosecution has the burden of showing harmlessness, but when Rule 52(b) controls, the defendant must show that the error affects substantial rights. See United States v. Vonn, 535 U.S. 55, 62. As clarified in Vonn and United States v. Dominguez Benitez, 542 U.S. 74, Rule 11 error may be of the Rule 52(a) type or the Rule 52(b) kind, depending on when the error was raised. In Vonn, the judge who conducted the plea hearing failed to inform the defendant, as required by Rule 11(c)(3), that he would have “the right to the assistance of counsel” if he proceeded to trial. The defendant first objected to the omission on appeal. This Court held that “a silent defendant has the burden to satisfy [Rule 52(b)’s] plain-error rule.” 535 U. S., at 59. In Dominguez Benitez, the error first raised on appeal was failure to warn the defendant, as Rule 11(c)(3)(B) instructs, that a plea could not be withdrawn even if the sentence imposed was higher than the plea-bargained sentence recommendation. The Court again held that Rule 52(b) controlled, and prescribed the standard a defendant silent until appeal must meet to show “plain error,” namely, “a reasonable probability that, but for the [Rule 11] error, he would not have entered the plea.” 542 U. S., at 83. . (b) Here, the Magistrate Judge plainly violated Rule 11(c)(1) by exhorting Davila to plead guilty. Davila contends that automatic vacatur, while inappropriate for most Rule 11 violations, should attend conduct banned by Rule 11(c)(1). He distinguishes plea-colloquy omissions, i.e., errors of the kind involved in Vonn and Dominguez Benitez, from pre-plea exhortations to admit guilt. The former come into play after a defendant has decided to plead guilty, the latter, before a defendant has decided to plead guilty or to stand trial. Nothing in Rule 11’s text, however, indicates that the ban on judicial involvement in plea discussions, if dishonored, demands automatic vacatur without regard to case-specific circumstances. Nor does the Advisory Committee commentary single out any Rule 11 instruction as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription (or, absent prompt objection, the plain-error rule). Rule 11(c)(1) was adopted as a prophylactic measure, not one impelled by the Due Process Clause or any other constitutional requirement. Thus, violation of the Rule does not belong in the highly exceptional category of structural errors—e.g., denial of counsel of choice or denial of a public trial—that trigger automatic reversal because they undermine the fairness of the entire criminal proceeding. United States v. Marcus, 560 U.S. 258, ___. Instead, in assessing Rule 11 errors, a reviewing court must take account of all that transpired in the trial court. Had Davila’s guilty plea followed soon after the Magistrate Judge’s comments, the automatic-vacatur rule would have remained erroneous. The Court of Appeals’ mistake in that regard, however, might have been inconsequential, for the Magistrate Judge’s exhortations, if they immediately elicited a plea, would likely have qualified as prejudicial. Here, however, three months distanced the in camera meeting conducted by the Magistrate Judge from Davila’s appearance before the District Judge who examined and accepted his guilty plea after an exemplary Rule 11 colloquy, at which Davila had the opportunity to raise any questions he might have about matters relating to his plea. The Court of Appeals, therefore, should not have assessed the Magistrate Judge’s comments in isolation. Instead, it should have considered, in light of the full record, whether it was reasonably probable that, but for the Magistrate Judge’s comments, Davila would have exercised his right to go to trial. . (c) The Court of Appeals, having concluded that the Magistrate Judge’s comments violated Rule 11(c)(1), cut off further consideration. It did not engage in a full-record assessment of the particular facts of Davila’s case or the case-specific arguments raised by the parties, including the Government’s assertion that Davila was not prejudiced by the Magistrate Judge’s comments, and Davila’s contention that the extraordinary circumstances his case presents should allow his claim to be judged under Rule 52(a)’s harmless-error standard rather than Rule 52(b)’s plain-error standard. The Court decides only that the automatic-vacatur rule is incompatible with Rule 11(h) and leaves all remaining issues to be addressed on remand. P. 14. 664 F.3d 1355, vacated and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined.

Respondent entered a guilty plea to a conspiracy charge in exchange for dismissal of the other 33 counts charged in the indictment. Respondent did not mention the pre-plea hearing before the Magistrate Judge or the in camera hearing conducted by the District Judge, but he did mention that he had heard from his court-appointed attorney that it might be a good idea for respondent to accept responsibility for his criminal conduct, to plead guilty, and to go to sentencing with the best arguments available, without wasting the Court's time, and causing the Government to have to spend a bunch of money empanelling a jury to try an open and shut case. Respondent moved in the District Court to vacate his plea and to dismiss the indictment, but neither respondent nor the court mentioned the in-camera hearing. The District Judge denied the motion, and the Court of Appeals held that the Rule 11(c)(1) violation required automatic vacatur of respondent's guilty plea. Held: Automatic vacatur, while inappropriate for most Rule 11 violations, should attend conduct banned by the Rule. . (a) The Rule is designed to ensure that a defendant's plea is fully informed and intelligently made, and not to object to a Rule 11 error even though it may not affect substantial rights. Rule 52(a), which covers trial court errors generally, provides that a variance from the requirements of the Rule is harmless error if it does not affect the substantial rights of a defendant. However, nothing in Rule 11's text indicates that the ban on judicial involvement in plea discussions, if dishonored, demands automatic vacatation of the plea without regard to case-specific circumstances. Rather, the court cut off consideration of the particular facts of respondent his case upon concluding that the Judge's comments violated Rule 11. That pretermission kept the court from reaching the parties, including the Government, which asserted that respondent was not prejudiced by the Judge comments, and respondent's contention that the extraordinary circumstances his case presents should allow his claim to be judged under the harmless-error standard of Fed. Rule Crim. Proc. 11(h), the rule that ordinarily attends a defendant’s failure to object. P.. (b) The Court did not engage in that full-record assessment here, but rather cut off the Court of Appeals from reaching any of the following issues: (1) the Government was correct in its assertion that the judge violated the Rule by improperly participating in the plea-bargaining hearing, and (2) the Court should have considered whether it was reasonably probable that, but for the Judge exhortations, respondent would have exercised his right to trial.. 664 F.3d 1355, vacated and remanded. REHNQUIST, J., wrote the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. BRENNAN and MARSHALL JJ., filed an opinion concurring in the judgment, post, p..

2012_12-418

https://www.oyez.org/cases/2012/12-418

. In 1999 a special court-martial convicted Anthony Kebo- deaux, a member of the United States Air Force, of a sex offense. It imposed a sentence of three months’ imprisonment and a bad conduct discharge. In 2006, several years after Kebodeaux had served his sentence and been discharged, Congress enacted the Sex Offender Registration and Notification Act (SORNA), 120Stat. 590, 42 U. S. C. §16901 et seq., a federal statute that requires those convicted of federal sex offenses to register in the States where they live, study, and work. §16913(a); 18 U. S. C. §2250(a). And, by regulation, the Federal Government made clear that SORNA’s registration requirements ap- ply to federal sex offenders who, when SORNA became law, had already completed their sentences. 42 U. S. C. §16913(d) (Attorney General’s authority to issue regulations); 28 CFR §72.3 (2012) (regulation specifying application to pre-SORNA offenders). We here must decide whether the Constitution’s Necessary and Proper Clause grants Congress the power to enact SORNA’s registration requirements and apply them to a federal offender who had completed his sentence prior to the time of SORNA’s enactment. For purposes of answering this question, we assume that Congress has complied with the Constitution’s Ex Post Facto and Due Process Clauses. See Smith v. Doe, 538 U. S. 84 –106 (2003) (upholding a similar Alaska statute against ex post facto challenge); Supp. Brief for Kebodeaux on Rehearing En Banc in No. 08–51185 (CA5) (not raising any Due Process challenge); Brief for Respondent (same). We conclude that the Necessary and Proper Clause grants Congress adequate power to enact SORNA and to apply it here. I As we have just said, in 1999 a special court-martial convicted Kebodeaux, then a member of the Air Force, of a federal sex offense. He served his 3-month sentence; the Air Force released him with a bad conduct discharge. And then he moved to Texas. In 2004 Kebodeaux registered as a sex offender with Texas state authorities. Brief for Respondent 6–7. In 2006 Congress enacted SORNA. In 2007 Kebodeaux moved within Texas from San Antonio to El Paso, updating his sex offender registration. App. to Pet. for Cert. 167a–168a. But later that year he returned to San Antonio without making the legally required sex-offender registration changes. Id., at 169a. And the Federal Government, acting under SORNA, prosecuted Kebodeaux for this last-mentioned SORNA registration failure. A Federal District Court convicted Kebodeaux of having violated SORNA. See 687 F. 3d 232, 234 (CA5 2012) (en banc). On appeal a panel of the United States Court of Appeals for the Fifth Circuit initially upheld the conviction. 647 F. 3d 137 (2011) (per curiam). But the Circuit then heard the appeal en banc and, by a vote of 10 to 6, reversed. 687 F. 3d, at 234. The court stated that, by the time Congress enacted SORNA, Kebodeaux had “fully served” his sex-offense sentence; he was “no longer in federal custody, in the military, under any sort of supervised release or parole, or in any other special relationship with the federal government.” Ibid. The court recognized that, even before SORNA, federal law required certain federal sex offenders to register. Id., at 235, n. 4. See Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, §170101, 108Stat. 2038–2042. But it believed that the pre-SORNA federal registration requirements did not apply to Kebodeaux. 687 F. 3d, at 235, n. 4. Hence, in the Circuit’s view, Kebodeaux had been “unconditionally let . . . free.” Id., at 234. And, that being so, the Federal Government lacked the power under Article I’s Necessary and Proper Clause to regulate through registration Kebo- deaux’s intrastate movements. Id., at 234–235. In particular, the court said that after “the federal government has unconditionally let a person free . . . the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution.” Ibid. The Solicitor General sought certiorari. And, in light of the fact that a Federal Court of Appeals has held a federal statute unconstitutional, we granted the petition. See, e.g., United States v. Morrison, 529 U. S. 598, 605 (2000) ; United States v. Edge Broadcasting Co., 509 U. S. 418, 425 (1993) . II We do not agree with the Circuit’s conclusion. And, in explaining our reasons, we need not go much further than the Circuit’s critical assumption that Kebodeaux’s release was “unconditional,” i.e., that after Kebodeaux’s release, he was not in “any . . . special relationship with the fed- eral government.” 687 F. 3d, at 234. To the contrary, the Solicitor General, tracing through a complex set of statutory cross-references, has pointed out that at the time of his offense and conviction Kebodeaux was subject to the federal Wetterling Act, an Act that imposed upon him registration requirements very similar to those that SORNA later mandated. Brief for United States 18–29. Congress enacted the Wetterling Act in 1994 and up- dated it several times prior to Kebodeaux’s offense. Like SORNA, it used the federal spending power to encourage States to adopt sex offender registration laws. 42 U. S. C. §14071(i) (2000 ed.); Smith, supra, at 89–90. Like SORNA, it applied to those who committed federal sex crimes. §14071(b)(7)(A). And like SORNA, it imposed federal penalties upon federal sex offenders who failed to register in the States in which they lived, worked, and studied. §§14072(i)(3)–(4). In particular, §14072(i)(3) imposed federal criminal penalties upon any “person who is . . . described in section 4042(c)(4) of title 18, and knowingly fails to register in any State in which the person resides.” The cross-referenced §4042(c)(4) said that a “person is described in this paragraph if the person was convicted of” certain enumerated offenses or “[a]ny other offense designated by the Attorney General as a sexual offense for purposes of this subsection.” 18 U. S. C. §4042(c)(4). In 1998 the Attorney General “delegated this authority [to designate sex offenses] to the Director of the Bureau of Prisons.” Dept. of Justice, Bureau of Prisons, Designation of Offenses Subject to Sex Offender Release Notification, 63 Fed. Reg. 69386. And that same year the Director of the Bureau of Prisons “designate[d]” the offense of which Kebodeaux was convicted, namely the military offense of “carnal knowledge” as set forth in Article 120(B) of the Code of Military Justice. Id., at 69387 See 28 CFR §571.72(b)(2) (1999). A full reading of these documents makes clear that, contrary to Kebodeaux’s contention, the relevant penalty applied to crimes committed by military personnel. Moreover, a different Wetterling Act section imposed federal criminal penalties upon any “person who is . . . sentenced by a court martial for conduct in a category specified by the Secretary of Defense under section 115(a)(8)(C) of title I of Public Law 105–119, and know- ingly fails to register in any State in which the person resides.” 42 U. S. C. §14072(i)(4) (2000 ed.). The cross-referenced section, §115(a)(8)(C), said that the “Secretary of Defense shall specify categories of conduct punishable under the Uniform Code of Military Justice which encompass a range of conduct comparable to that described in [certain provisions of the Violent Crime Control and Law Enforcement Act of 1994], and such other conduct as the Secretary deems appropriate.” 1998 Appropriations Act, §115(a)(8)(C)(i), 111Stat. 2466. See note following 10 U. S. C. §951 (2000 ed.). The Secretary had delegated certain types of authority, such as this last mentioned “deem[ing]” authority, to an Assistant Secretary of Defense. DoD Directive 5124.5, p. 4 (Oct. 31, 1994). And in December 1998 an Assistant Secretary, acting pursuant to this authority, published a list of military crimes that included the crime of which Kebodeaux was convicted, namely Article 120(B) of the Uniform Code of Military Justice. App. to Pet. for Cert. 171a–175a. The provision added that “[c]onvictions . . . shall trigger requirements to notify state and local law enforcement agencies and to provide information to inmates concerning sex offender registration requirements.” Id., at 175a. And, the provision says (contrary to Kebodeaux’s reading, Brief for Respondent 57), that it shall “take effect immediately.” It contains no expiration date. App. to Pet. for Cert. 175a. We are not aware of any plausible counterargument to the obvious conclusion, namely that as of the time of Kebo- deaux’s offense, conviction and release from federal custody, these Wetterling Act provisions applied to Kebo- deaux and imposed upon him registration requirements very similar to those that SORNA later imposed. Con- trary to what the Court of Appeals may have believed, the fact that the federal law’s requirements in part involved compliance with state-law requirements made them no less requirements of federal law. See generally United States v. Sharpnack, 355 U. S. 286 –294 (1958) (Congress has the power to adopt as federal law the laws of a State and to apply them in federal enclaves); Gibbons v. Ogden, 9 Wheat. 1, 207–208 (1824) (“Although Congress cannot enable a State to legislate, Congress may adopt the provisions of a State on any subject. . . . The act [adopts state systems for regulation of pilots] and gives [them] the same validity as if its provisions had been specially made by Congress”). III Both the Court of Appeals and Kebodeaux come close to conceding that if, as of the time of Kebodeaux’s offense, he was subject to a federal registration requirement, then the Necessary and Proper Clause authorized Congress to modify the requirement as in SORNA and to apply the modified requirement to Kebodeaux. See 687 F. 3d, at 234–235, and n. 4; Tr. of Oral Arg. 38–39. And we believe they would be right to make this concession. No one here claims that the Wetterling Act, as applied to military sex offenders like Kebodeaux, falls outside the scope of the Necessary and Proper Clause. And it is difficult to see how anyone could persuasively do so. The Constitution explicitly grants Congress the power to “make Rules for the . . . Regulation of the land and naval Forces.” Art. I, §8, cl. 14. And, in the Necessary and Proper Clause itself, it grants Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” and “all other Powers” that the Constitution vests “in the Government of the United States, or in any Department or Officer thereof.” Id., cl. 18. The scope of the Necessary and Proper Clause is broad. In words that have come to define that scope Chief Justice Marshall long ago wrote: “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.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). As we have come to understand these words and the provision they explain, they “leav[e] to Congress a large discretion as to the means that may be employed in executing a given power.” Lottery Case, 188 U. S. 321, 355 (1903) . See Morrison, 529 U. S., at 607. The Clause allows Congress to “adopt any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished and consistent with the letter and spirit of the Constitution.” James Everard’s Breweries v. Day, 265 U. S. 545, 559 (1924) . The Constitution, for example, makes few explicit references to federal criminal law, but the Necessary and Proper Clause nonetheless authorizes Congress, in the im- plementation of other explicit powers, to create federal crimes, to confine offenders to prison, to hire guards and other prison personnel, to provide prisoners with medical care and educational training, to ensure the safety of those who may come into contact with prisoners, to ensure the public’s safety through systems of parole and supervised release, and, where a federal prisoner’s mental condition so requires, to confine that prisoner civilly after the expiration of his or her term of imprisonment. See United States v. Comstock, 560 U. S. 126 –137 (2010). Here, under the authority granted to it by the Military Regulation and Necessary and Proper Clauses, Congress could promulgate the Uniform Code of Military Justice. It could specify that the sex offense of which Kebodeaux was convicted was a military crime under that Code. It could punish that crime through imprisonment and by placing conditions upon Kebodeaux’s release. And it could make the civil registration requirement at issue here a consequence of Kebodeaux’s offense and conviction. This civil requirement, while not a specific condition of Kebodeaux’s release, was in place at the time Kebodeaux committed his offense, and was a consequence of his violation of federal law. And Congress’ decision to impose such a civil requirement that would apply upon the release of an offender like Kebodeaux is eminently reasonable. Congress could reasonably conclude that registration requirements applied to federal sex offenders after their release can help protect the public from those federal sex offenders and alleviate public safety concerns. See Smith, 538 U. S., at 102–103 (sex offender registration has “a legitimate nonpunitive purpose of ‘public safety, which is advanced by alerting the public to the risk of sex offenders in their community’ ”). There is evidence that recidivism rates among sex offenders are higher than the average for other types of criminals. See Dept. of Justice, Bureau of Justice Statistics, P. Langan, E. Schmitt, & M. Durose, Recidivism of Sex Offenders Released in 1994, p. 1 (Nov. 2003) (reporting that compared to non-sex offenders, released sex offenders were four times more likely to be rearrested for a sex crime, and that within the first three years following release 5.3% of released sex offenders were rearrested for a sex crime). There is also conflicting evidence on the point. Cf. R. Tewsbury, W. Jennings, & K. Zgoba, Final Report on Sex Offenders: Recidivism and Collateral Consequences (Sept. 2011) (concluding that sex offenders have relatively low rates of recidivism, and that registration requirements have limited observable benefits regarding recidivism). But the Clause gives Congress the power to weigh the evidence and to reach a rational conclusion, for example, that safety needs justify postrelease registration rules. See Lambert v. Yellowley, 272 U. S. 581 – 595 (1926) (upholding congressional statute limiting the amount of spirituous liquor that may be prescribed by a physician, and noting that Congress’ “finding [regard- ing the appropriate amount], in the presence of the well-known diverging opinions of physicians, cannot be regarded as arbitrary or without a reasonable basis”). See also Gonzales v. Raich, 545 U. S. 1, 22 (2005) (“In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding”). See also H. R. Rep. No. 109–218, pt. 1, pp. 22, 23 (2005) (House Report) (citing statistics compiled by the Justice Department as support for SORNA’s sex offender registration regime). At the same time, “it is entirely reasonable for Congress to have assigned the Federal Government a special role in ensuring compliance with SORNA’s registration requirements by federal sex offenders—persons who typically would have spent time under federal criminal supervision.” Carr v. United States, 560 U. S. 438 , ___ (2010) (slip op., at 12). The Federal Government has long kept track of former federal prisoners through probation, parole, and supervised release in part to prevent further crimes thereby protecting the public against the risk of recidivism. See Parole Act, 36Stat. 819; Probation Act, ch. 521, 43Stat. 1259; Sentencing Reform Act of 1984, ch. II, 98Stat. 1987. See also 1 N. Cohen, The Law of Probation and Parole §§7:3, 7:4 (2d ed. 1999) (principal purposes of postrelease conditions are to rehabilitate the convict, thus preventing him from recidivating, and to protect the public). Neither, as of 1994, was registration particularly novel, for by then States had implemented similar requirements for close to half a century. See W. Logan, Knowledge as Power: Criminal Registration and Community Notification Laws in America 30–31 (2009). Moreover, the Wetterling Act took state interests into account by, for the most part, requiring released federal offenders to register in accordance with state law. At the same time, the Wetterling Act’s requirements were reasonably narrow and precise, tying time limits to the type of sex offense, incorporating state-law details, and relating penalties for violations to the sex crime initially at issue. See 42 U. S. C. §14071(b) (2000 ed.). The upshot is that here Congress did not apply SORNA to an individual who had, prior to SORNA’s enactment, been “unconditionally released,” i.e., a person who was not in “any . . . special relationship with the federal government,” but rather to an individual already subject to federal registration requirements that were themselves a valid exercise of federal power under the Military Regulation and Necessary and Proper Clauses. But cf. post, at 1 (Scalia, J., dissenting). SORNA, enacted after Kebodeaux’s release, somewhat modified the applicable registration requirements. In gen-eral, SORNA provided more detailed definitions of sex offenses, described in greater detail the nature of the information registrants must provide, and imposed somewhat different limits upon the length of time that regis- tration must continue and the frequency with which offenders must update their registration. 42 U. S. C. §§16911, 16913–16916 (2006 ed. and Supp. V). But the statute, like the Wetterling Act, used Spending Clause grants to encourage States to adopt its uniform definitions and requirements. It did not insist that the States do so. See §§16925(a), (d) (2006 ed.) (“The provisions of this subchapter that are cast as directions to jurisdictions or their officials constitute, in relation to States, only conditions required to avoid the reduction of Federal funding under this section”). As applied to an individual already subject to the Wetterling Act like Kebodeaux, SORNA makes few changes. In particular, SORNA modified the time limitations for a sex offender who moves to update his registration to within three business days of the move from both seven days before and seven days after the move, as required by the Texas law enforced under the Wetterling Act. Compare 42 U. S. C. §16913(c) with App. to Pet. for Cert. 167a–168a. SORNA also increased the federal penalty for a federal offender’s registration violation to a maximum of 10 years from a maximum of 1 year for a first offense. Compare 18 U. S. C. §2250(a) with 42 U. S. C. §14072(i) (2000 ed.). Kebodeaux was sentenced to one year and one day of imprisonment. For purposes of federal law, SORNA re- duced the duration of Kebodeaux’s registration requirement to 25 years from the lifetime requirement imposed by Texas law, compare 42 U. S. C. §16915(a) (2006 ed.) with App. to Pet. for Cert. 167a, and reduced the frequency with which Kebodeaux must update his registration to every six months from every 90 days as imposed by Texas law, compare 42 U. S. C. §16916(2) with App. to Pet. for Cert. 167a. And as far as we can tell, while SORNA punishes violations of its requirements (instead of violations of state law), the Federal Government has prosecuted a sex offender for violating SORNA only when that offender also violated state-registration requirements. SORNA’s general changes were designed to make more uniform what had remained “a patchwork of federal and 50 individual state registration systems,” Reynolds v. United States, 565 U. S. ___, ___ (2012) (slip op., at 2), with “loopholes and deficiencies” that had resulted in an estimated 100,000 sex offenders becoming “missing” or “lost,” House Report 20, 26. See S. Rep. No. 109–369, pp. 16–17 (2006). See also Jinks v. Richland County, 538 U. S. 456 –463 (2003) (holding that a statute is authorized by the Necessary and Proper Clause when it “provides an alternative to [otherwise] unsatisfactory options” that are “obviously inefficient”). SORNA’s more specific changes reflect Congress’ determination that the statute, changed in respect to frequency, penalties, and other details, will keep track of more offenders and will encourage States themselves to adopt its uniform standards. No one here claims that these changes are unreasonable or that Congress could not reasonably have found them “necessary and proper” means for furthering its pre-existing registration ends. We conclude that the SORNA changes as applied to Kebodeaux fall within the scope Congress’ authority under the Military Regulation and Necessary and Proper Clauses. The Fifth Circuit’s judgment to the contrary is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UNITED STATES v. KEBODEAUX certiorari to the united states court of appeals for the fifth circuit No. 12–418. Argued April 17, 2013—Decided June 24, 2013 Respondent Kebodeaux was convicted by a special court-martial of a federal sex offense. After serving his sentence and receiving a bad conduct discharge from the Air Force, he moved to Texas where he registered with state authorities as a sex offender. Congress subsequently enacted the Sex Offender Registration and Notification Act (SORNA), which requires federal sex offenders to register in the States where they live, study, and work, 42 U. S. C. §16913(a), and which applies to offenders who, when SORNA became law, had already completed their sentences, 28 CFR §72.3. When Kebodeaux moved within Texas and failed to update his registration, the Federal Government prosecuted him under SORNA, and the District Court convicted him. The Fifth Circuit reversed, noting that, at the time of SORNA’s enactment, Kebodeaux had served his sentence and was no longer in any special relationship with the Federal Government. Believing that Kebodeaux was not required to register under the pre-SORNA Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, the court found that he had been “unconditionally” freed. That being so, the court held, the Federal Government lacked the power under Article I’s Necessary and Proper Clause to regulate his intrastate movements. Held: SORNA’s registration requirements as applied to Kebodeaux fall within the scope of Congress’ authority under the Necessary and Proper Clause. . (a) Contrary to the Fifth Circuit’s critical assumption that Kebodeaux’s release was unconditional, a full reading of the relevant statutes and regulations makes clear that at the time of his offense and conviction he was subject to the Wetterling Act, which imposed upon him registration requirements very similar to SORNA’s. See, e.g., 42 U. S. C. §§14072(i)(3)–(4). The fact that these federal-law requirements in part involved compliance with state-law requirements made them no less requirements of federal law. See generally United States v. Sharpnack, 355 U.S. 286, 293–294. . (b) Congress promulgated the Wetterling Act under authority granted by the Military Regulation Clause, Art. I, §8, cl. 14, and the Necessary and Proper Clause. The same power that authorized Congress to promulgate the Uniform Code of Military Justice and punish Kebodeaux’s crime also authorized Congress to make the civil registration requirement at issue here a consequence of his conviction. And its decision to impose a civil registration requirement that would apply upon the release of an offender like Kebodeaux is eminently reasonable. See Smith v. Doe, 538 U.S. 84, 102–103. It was also entirely reasonable for Congress to have assigned a special role to the Federal Government in ensuring compliance with federal sex offender registration requirements. See Carr v. United States, 560 U.S. 438, ___. Thus, Congress did not apply SORNA to an individual who had, prior to its enactment, been “unconditionally released,” but rather to an individual already subject to federal registration requirements enacted pursuant to the Military Regulation and Necessary and Proper Clauses. SORNA somewhat modified the applicable registration requirements to which Kebodeaux was already subject, in order to make more uniform what had remained “a patchwork of federal and 50 individual state registration requirements,” Reynolds v. United States, 565 U. S. ___, ___. No one here claims that these changes are unreasonable or that Congress could not reasonably have found them “necessary and proper” means for furthering its pre-existing registration ends. . 687 F.3d 232, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., and Alito, J., filed opinions concurring in the judgment. Scalia, J., filed a dissenting opinion. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined as to Parts I, II, and III–B.

In 1999 a special court-martial convicted Anthony Kebo- deaux, then a member of the United States Air Force, of a federal sex offense. He served his sentence; the Air Force released him with a bad conduct discharge; and then he moved to Texas. In 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA), a federal statute that requires those convicted of federal sex offenses to register in the States where they live, study, and work. And, by regulation, the Federal Government made clear that SORNA's registration requirements ap- ply to federal sex offenders who, when the Act became law, had already completed their sentences. The Federal District Court convicted Kebodeaux of having violated the statutory registration requirements, and the Court of Appeals reversed, holding that, by the time Congress enacted SORSNA, he had fully served his sex-offense sentence, and was no longer in federal custody, in the military, under any sort of supervised release or parole, or in any other special relationship with the federal government. Held: The Necessary and Proper Clause of the Constitution grants Congress adequate power to enact SORSA and to apply it here. . (a) The Constitution explicitly grants Congress the power to make Rules for the Regulation of the land and naval Forces, Art. I, §8, cl. 14, and, in that provision itself, it grants Congress a large discretion as to the means that may be employed in executing a given power. And the scope of the Clause is broad. In words that have come to define that scope, the Clause gives Congress power to weigh the evidence and to reach a rational conclusion, for example, that safety needs justify postrelease registration rules. See, e.g., Lottery Case, 188 U. S. 321, 355 (1903) (slip op., at 2), and, at the same time, it is entirely reasonable for Congress to have assigned the Government a special role in ensuring compliance with the registration requirements. Moreover, the Government has long kept track of former federal prisoners through probation, parole, and supervised release in part to prevent further crimes thereby protecting the public against the risk of recidivization. Here, Congress could specify that sex offenses were a military crime under the Uniform Code of Military Justice, and that it could punish that crime through imprisonment and by placing conditions upon the release of such an offender. And Congress could make the civil registration requirement at issue here a consequence of the offense and conviction. This civil requirement, which was in place at the time the offense was committed and was a result of the violation of federal law, is eminently reasonable. And this decision to impose such a civil requirement that would apply upon an offender like Kebodieaux is also reasonable.. 687 F. 3d 232, reversed and remanded. EVENS, J., wrote the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, post, p.. DOUGLAS, BRENNAN, and STEVENS JJ., took no part in the decision of the case.

2012_12-307

https://www.oyez.org/cases/2012/12-307

. Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of “spouse” as that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the constitutionality of this provision. The United States District Court and the Court of Appeals ruled that this portion of the statute is unconstitutional and ordered the United States to pay Windsor a refund. This Court granted certiorari and now affirms the judgment in Windsor’s favor. I In 1996, as some States were beginning to consider the concept of same-sex marriage, see, e.g., Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993), and before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA), 110Stat. 2419. DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 28 U. S. C. §1738C. Section 3 is at issue here. It amends the Dictionary Act in Title 1, §7, of the United States Code to provide a fed- eral definition of “marriage” and “spouse.” Section 3 of DOMA provides as follows: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U. S. C. §7. The definitional provision does not by its terms forbid States from enacting laws permitting same-sex marriages or civil unions or providing state benefits to residents in that status. The enactment’s comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms, however, does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law. See GAO, D. Shah, Defense of Marriage Act: Update to Prior Report 1 (GAO–04–353R, 2004). Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term relationship. Windsor and Spyer registered as domestic partners when New York City gave that right to same-sex couples in 1993. Concerned about Spyer’s health, the couple made the 2007 trip to Canada for their marriage, but they continued to reside in New York City. The State of New York deems their Ontario marriage to be a valid one. See 699 F. 3d 169, 177–178 (CA2 2012). Spyer died in February 2009, and left her entire estate to Windsor. Because DOMA denies federal recognition to same-sex spouses, Windsor did not qualify for the marital exemption from the federal estate tax, which excludes from taxation “any interest in property which passes or has passed from the decedent to his surviving spouse.” 26 U. S. C. §2056(a). Windsor paid $363,053 in estate taxes and sought a refund. The Internal Revenue Service denied the refund, concluding that, under DOMA, Windsor was not a “surviving spouse.” Windsor commenced this refund suit in the United States District Court for the Southern District of New York. She contended that DOMA violates the guarantee of equal protection, as applied to the Federal Government through the Fifth Amendment. While the tax refund suit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives, pursuant to 28 U. S. C. §530D, that the Department of Justice would no longer defend the constitutionality of DOMA’s §3. Noting that “the Department has previously defended DOMA against . . . challenges involving legally married same-sex couples,” App. 184, the Attorney General informed Congress that “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny.” Id., at 191. The Department of Justice has submitted many §530D letters over the years refusing to defend laws it deems unconstitutional, when, for instance, a federal court has rejected the Government’s defense of a statute and has issued a judgment against it. This case is unusual, however, because the §530D letter was not preceded by an adverse judgment. The letter instead reflected the Executive’s own conclusion, relying on a definition still being debated and considered in the courts, that heightened equal protection scrutiny should apply to laws that classify on the basis of sexual orientation. Although “the President . . . instructed the Department not to defend the statute in Windsor,” he also decided “that Section 3 will continue to be enforced by the Executive Branch” and that the United States had an “interest in providing Congress a full and fair opportunity to participate in the litigation of those cases.” Id., at 191–193. The stated rationale for this dual-track procedure (determination of unconstitutionality coupled with ongoing enforcement) was to “recogniz[e] the judiciary as the final arbiter of the constitutional claims raised.” Id., at 192. In response to the notice from the Attorney General, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend the constitutionality of §3 of DOMA. The Department of Justice did not oppose limited intervention by BLAG. The District Court denied BLAG’s motion to enter the suit as of right, on the rationale that the United States already was represented by the Department of Justice. The District Court, however, did grant intervention by BLAG as an interested party. See Fed. Rule Civ. Proc. 24(a)(2). On the merits of the tax refund suit, the District Court ruled against the United States. It held that §3 of DOMA is unconstitutional and ordered the Treasury to refund the tax with interest. Both the Justice Department and BLAG filed notices of appeal, and the Solicitor General filed a petition for certiorari before judgment. Before this Court acted on the petition, the Court of Appeals for the Second Circuit affirmed the District Court’s judgment. It applied heightened scrutiny to classifications based on sexual orientation, as both the Department and Windsor had urged. The United States has not complied with the judg- ment. Windsor has not received her refund, and the Ex- ecutive Branch continues to enforce §3 of DOMA. In granting certiorari on the question of the constitutionality of §3 of DOMA, the Court requested argument on two additional questions: whether the United States’ agreement with Windsor’s legal position precludes further review and whether BLAG has standing to appeal the case. All parties agree that the Court has jurisdiction to decide this case; and, with the case in that framework, the Court appointed Professor Vicki Jackson as amicus curiae to argue the position that the Court lacks jurisdiction to hear the dispute. 568 U. S. ___ (2012). She has ably discharged her duties. In an unrelated case, the United States Court of Appeals for the First Circuit has also held §3 of DOMA to be unconstitutional. A petition for certiorari has been filed in that case. Pet. for Cert. in Bipartisan Legal Advisory Group v. Gill, O. T. 2012, No. 12–13. II It is appropriate to begin by addressing whether either the Government or BLAG, or both of them, were entitled to appeal to the Court of Appeals and later to seek certiorari and appear as parties here. There is no dispute that when this case was in the District Court it presented a concrete disagreement between opposing parties, a dispute suitable for judicial resolution. “[A] taxpayer has standing to challenge the collection of a specific tax assessment as unconstitutional; being forced to pay such a tax causes a real and immediate economic injury to the individual taxpayer.” Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587, 599 (2007) (plurality opinion) (emphasis deleted). Windsor suffered a redressable injury when she was required to pay estate taxes from which, in her view, she was exempt but for the alleged invalidity of §3 of DOMA. The decision of the Executive not to defend the constitutionality of §3 in court while continuing to deny refunds and to assess deficiencies does introduce a complication. Even though the Executive’s current position was announced before the District Court entered its judgment, the Government’s agreement with Windsor’s position would not have deprived the District Court of jurisdiction to entertain and resolve the refund suit; for her injury (fail- ure to obtain a refund allegedly required by law) was concrete, persisting, and unredressed. The Government’s position—agreeing with Windsor’s legal contention but refusing to give it effect—meant that there was a justiciable controversy between the parties, despite what the claimant would find to be an inconsistency in that stance. Windsor, the Government, BLAG, and the amicus appear to agree upon that point. The disagreement is over the standing of the parties, or aspiring parties, to take an appeal in the Court of Appeals and to appear as parties in further proceedings in this Court. The amicus’ position is that, given the Government’s concession that §3 is unconstitutional, once the District Court ordered the refund the case should have ended; and the amicus argues the Court of Appeals should have dismissed the appeal. The amicus submits that once the President agreed with Windsor’s legal position and the District Court issued its judgment, the parties were no longer adverse. From this standpoint the United States was a prevailing party below, just as Windsor was. Accordingly, the amicus reasons, it is inappropriate for this Court to grant certiorari and proceed to rule on the merits; for the United States seeks no redress from the judgment entered against it. This position, however, elides the distinction between two principles: the jurisdictional requirements of Article III and the prudential limits on its exercise. See Warth v. Seldin, 422 U. S. 490, 498 (1975) . The latter are “essentially matters of judicial self-governance.” Id., at 500. The Court has kept these two strands separate: “Article III standing, which enforces the Constitution’s case-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U. S. 555 –562 (1992); and prudential standing, which embodies ‘judicially self-imposed limits on the exer- cise of federal jurisdiction,’ Allen [v. Wright,] 468 U. S. [737,] 751 [(1984)].” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1 –12 (2004). The requirements of Article III standing are familiar: “First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural or hypothetical.” ’ Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favor- able decision.’ ” Lujan, supra, at 560–561 (footnote and citations omitted). Rules of prudential standing, by contrast, are more flex- ible “rule[s] . . . of federal appellate practice,” Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 333 (1980) , designed to protect the courts from “decid[ing] abstract questions of wide public significance even [when] other governmental institutions may be more competent to ad- dress the questions and even though judicial intervention may be unnecessary to protect individual rights.” Warth, supra, at 500. In this case the United States retains a stake sufficient to support Article III jurisdiction on appeal and in proceedings before this Court. The judgment in question orders the United States to pay Windsor the refund she seeks. An order directing the Treasury to pay money is “a real and immediate economic injury,” Hein, 551 U. S., at 599, indeed as real and immediate as an order directing an individual to pay a tax. That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not. The judgment orders the United States to pay money that it would not disburse but for the court’s order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with §3 of DOMA, which results in Windsor’s liability for the tax. Windsor’s ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling. This Court confronted a comparable case in INS v. Chadha, 462 U. S. 919 (1983) . A statute by its terms allowed one House of Congress to order the Immigration and Naturalization Service (INS) to deport the respondent Chadha. There, as here, the Executive determined that the statute was unconstitutional, and “the INS presented the Executive’s views on the constitutionality of the House action to the Court of Appeals.” Id., at 930. The INS, however, continued to abide by the statute, and “the INS brief to the Court of Appeals did not alter the agency’s decision to comply with the House action ordering deportation of Chadha.” Ibid. This Court held “that the INS was sufficiently aggrieved by the Court of Appeals deci- sion prohibiting it from taking action it would otherwise take,” ibid., regardless of whether the agency welcomed the judgment. The necessity of a “case or controversy” to satisfy Article III was defined as a requirement that the Court’s “ ‘decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold [the statute], the INS will execute its order and deport him.’ ” Id., at 939–940 (quoting Chadha v. INS, 634 F. 2d 408, 419 (CA9 1980)). This conclusion was not dictum. It was a necessary predicate to the Court’s holding that “prior to Congress’ intervention, there was adequate Art. III adverseness.” 462 U. S., at 939. The holdings of cases are instructive, and the words of Chadha make clear its holding that the refusal of the Executive to provide the relief sought suffices to preserve a justiciable dispute as required by Article III. In short, even where “the Government largely agree[s] with the opposing party on the merits of the controversy,” there is sufficient adverseness and an “adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party.” Id., at 940, n. 12. It is true that “[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.” Roper, supra, at 333, see also Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 8) (“As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party, even when the Constitution allowed us to do so”). But this rule “does not have its source in the jurisdictional limitations of Art. III. In an appropriate case, appeal may be permitted . . . at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III.” Roper, supra, at 333–334. While these principles suffice to show that this case presents a justiciable controversy under Article III, the prudential problems inherent in the Executive’s unusual position require some further discussion. The Executive’s agreement with Windsor’s legal argument raises the risk that instead of a “ ‘real, earnest and vital controversy,’ ” the Court faces a “friendly, non-adversary, proceeding . . . [in which] ‘a party beaten in the legislature [seeks to] transfer to the courts an inquiry as to the constitutionality of the legislative act.’ ” Ashwander v. TVA, 297 U. S. 288, 346 (1936) (Brandeis, J., concurring) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892) ). Even when Article III permits the exercise of federal jurisdiction, prudential considerations demand that the Court insist upon “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. 186, 204 (1962) . There are, of course, reasons to hear a case and issue a ruling even when one party is reluctant to prevail in its position. Unlike Article III requirements—which must be satisfied by the parties before judicial consideration is appropriate—the relevant prudential factors that counsel against hearing this case are subject to “countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.” Warth, 422 U. S., at 500–501. One consideration is the extent to which adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor the constitutionality of the legislative act. With respect to this prudential aspect of standing as well, the Chadha Court encountered a similar situation. It noted that “there may be prudential, as opposed to Art. III, concerns about sanctioning the adjudication of [this case] in the absence of any participant supporting the validity of [the statute]. The Court of Appeals properly dispelled any such concerns by inviting and accepting briefs from both Houses of Congress.” 462 U. S., at 940. Chadha was not an anomaly in this respect. The Court adopts the practice of entertaining arguments made by an amicus when the Solicitor General confesses error with respect to a judgment below, even if the confession is in effect an admission that an Act of Congress is unconstitutional. See, e.g., Dickerson v. United States, 530 U. S. 428 (2000) . In the case now before the Court the attorneys for BLAG present a substantial argument for the constitutionality of §3 of DOMA. BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred in failing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. For instance, the opinion of the Court of Appeals for the First Circuit, addressing the validity of DOMA in a case involving regulations of the Department of Health and Human Services, likely would be vacated with instructions to dismiss, its ruling and guidance also then erased. See Massachusetts v. United States Dept. of Health and Human Servs., 682 F. 3d 1 (CA1 2012). Rights and privileges of hundreds of thousands of persons would be adversely affected, pending a case in which all prudential concerns about justiciability are absent. That numerical prediction may not be certain, but it is certain that the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. True, the very extent of DOMA’s mandate means that at some point a case likely would arise without the prudential concerns raised here; but the costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved. In these unusual and urgent circumstances, the very term “prudential” counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction. For these reasons, the prudential and Article III requirements are met here; and, as a consequence, the Court need not decide whether BLAG would have standing to challenge the District Court’s ruling and its affirmance in the Court of Appeals on BLAG’s own authority. The Court’s conclusion that this petition may be heard on the merits does not imply that no difficulties would ensue if this were a common practice in ordinary cases. The Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma. On the one hand, as noted, the Government’s agreement with Windsor raises questions about the propriety of entertaining a suit in which it seeks affirmance of an order invalidating a federal law and ordering the United States to pay money. On the other hand, if the Execu- tive’s agreement with a plaintiff that a law is unconsti- tutional is enough to preclude judicial review, then the Supreme Court’s primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim would become only secondary to the President’s. This would undermine the clear dictate of the separation-of-powers principle that “when an Act of Congress is alleged to conflict with the Constitution, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ ” Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). Similarly, with respect to the legislative power, when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’ enactment solely on its own initiative and without any determination from the Court. The Court’s jurisdictional holding, it must be underscored, does not mean the arguments for dismissing this dispute on prudential grounds lack substance. Yet the difficulty the Executive faces should be acknowledged. When the Executive makes a principled determination that a statute is unconstitutional, it faces a difficult choice. Still, there is no suggestion here that it is appropriate for the Executive as a matter of course to challenge statutes in the judicial forum rather than making the case to Congress for their amendment or repeal. The integrity of the political process would be at risk if difficult consti- tutional issues were simply referred to the Court as a routine exercise. But this case is not routine. And the capable defense of the law by BLAG ensures that these prudential issues do not cloud the merits question, which is one of immediate importance to the Federal Government and to hundreds of thousands of persons. These cir- cumstances support the Court’s decision to proceed to the merits. III When at first Windsor and Spyer longed to marry, neither New York nor any other State granted them that right. After waiting some years, in 2007 they traveled to Ontario to be married there. It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion. Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York recognized same-sex marriages performed elsewhere; and then it later amended its own marriage laws to permit same-sex marriage. New York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons. After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same- sex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood. See Marriage Equality Act, 2011 N. Y. Laws 749 (codified at N. Y. Dom. Rel. Law Ann. §§10–a, 10–b, 13 (West 2013)). Against this background of lawful same-sex marriage in some States, the design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution. By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges. Just this Term the Court upheld the authority of the Congress to pre-empt state laws, allowing a former spouse to retain life insurance proceeds under a federal program that gave her priority, because of formal beneficiary designation rules, over the wife by a second marriage who survived the husband. Hillman v. Maretta, 569 U. S. ___ (2013); see also Ridgway v. Ridgway, 454 U. S. 46 (1981) ; Wissner v. Wissner, 338 U. S. 655 (1950) . This is one example of the general principle that when the Federal Government acts in the exercise of its own proper authority, it has a wide choice of the mechanisms and means to adopt. See McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). Congress has the power both to ensure efficiency in the administration of its programs and to choose what larger goals and policies to pursue. Other precedents involving congressional statutes which affect marriages and family status further illustrate this point. In addressing the interaction of state domestic relations and federal immigration law Congress determined that marriages “entered into for the purpose of procuring an alien’s admission [to the United States] as an immigrant” will not qualify the noncitizen for that status, even if the noncitizen’s marriage is valid and proper for state-law purposes. 8 U. S. C. §1186a(b)(1) (2006 ed. and Supp. V). And in establishing income-based criteria for Social Security benefits, Congress decided that although state law would determine in general who qualifies as an applicant’s spouse, common-law marriages also should be recognized, regardless of any particular State’s view on these relationships. 42 U. S. C. §1382c(d)(2). Though these discrete examples establish the constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy, DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations. And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003); An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples, 2009 Conn. Pub. Acts no. 09–13; Varnum v. Brien, 763 N. W. 2d 862 (Iowa 2009); Vt. Stat. Ann., Tit. 15, §8 (2010); N. H. Rev. Stat. Ann. §457:1–a (West Supp. 2012); Religious Freedom and Civil Marriage Equality Amendment Act of 2009, 57 D. C. Reg. 27 (Dec. 18, 2009); N. Y. Dom. Rel. Law Ann. §10–a (West Supp. 2013); Wash. Rev. Code §26.04.010 (2012); Citizen Initiative, Same- Sex Marriage, Question 1 (Me. 2012) (results online at http: / / w w w.maine.gov/sos/cec/elec/2012/tab - ref-2012.html (all Internet sources as visited June 18, 2013, and avail- able in Clerk of Court’s case file)); Md. Fam. Law Code Ann. §2–201 (Lexis 2012); An Act to Amend Title 13 of the Delaware Code Relating to Domestic Relations to Provide for Same-Gender Civil Marriage and to Convert Exist- ing Civil Unions to Civil Marriages, 79 Del. Laws ch. 19 (2013); An act relating to marriage; providing for civil marriage between two persons; providing for exemptions and protections based on religious association, 2013 Minn. Laws ch. 74; An Act Relating to Domestic Relations—Persons Eligible to Marry, 2013 R. I. Laws ch. 4. In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and au- thority over marriage as a matter of history and tradi- tion. State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967) ; but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U. S. 393, 404 (1975) . The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U. S. 287, 298 (1942) (“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders”). The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.” Ibid. “[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock v. Haddock, 201 U. S. 562, 575 (1906) ; see also In re Burrus, 136 U. S. 586 –594 (1890) (“The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States”). Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. In De Sylva v. Ballentine, 351 U. S. 570 (1956) , for example, the Court held that, “[t]o decide who is the widow or widower of a deceased author, or who are his executors or next of kin,” under the Copyright Act “requires a reference to the law of the State which created those legal relationships” because “there is no federal law of domestic relations.” Id., at 580. In order to respect this principle, the federal courts, as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction. See Ankenbrandt v. Richards, 504 U. S. 689, 703 (1992) . Federal courts will not hear divorce and custody cases even if they arise in diversity because of “the virtually exclusive primacy . . . of the States in the regulation of domestic relations.” Id., at 714 (Blackmun, J., concurring in judgment). The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” Ohio ex rel. Popovici v. Agler, 280 U. S. 379 –384 (1930). Marriage laws vary in some respects from State to State. For example, the required minimum age is 16 in Vermont, but only 13 in New Hampshire. Compare Vt. Stat. Ann., Tit. 18, §5142 (2012), with N. H. Rev. Stat. Ann. §457:4 (West Supp. 2012). Likewise the permissible degree of consanguinity can vary (most States permit first cousins to marry, but a handful—such as Iowa and Washington, see Iowa Code §595.19 (2009); Wash. Rev. Code §26.04.020 (2012)—prohibit the practice). But these rules are in every event consistent within each State. Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tra- dition of reliance on state law to define marriage. “ ‘[D]is-criminations of an unusual character especially sug- gest careful consideration to determine whether they are obnoxious to the constitutional provision.’ ” Romer v. Evans, 517 U. S. 620, 633 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32 –38 (1928)). The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and dis- abilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. In acting first to recognize and then to allow same-sex marriages, New York was responding “to the initiative of those who [sought] a voice in shaping the destiny of their own times.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9). These actions were without doubt a proper exercise of its sovereign authority within our fed- eral system, all in the way that the Framers of the Constitu-tion intended. The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other. The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form “but one element in a personal bond that is more enduring.” Lawrence v. Texas, 539 U. S. 558, 567 (2003) . By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. IV DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954) . The Constitution’s guarantee of equality “must at the very least mean that a bare con- gressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Depart- ment of Agriculture v. Moreno, 413 U. S. 528 –535 (1973). In determining whether a law is motived by an improper animus or purpose, “ ‘[d]iscriminations of an un- usual character’ ” especially require careful considera- tion. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H. R. Rep. No. 104–664, pp. 12–13 (1996). The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Id., at 16 (footnote deleted). The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage. The arguments put forward by BLAG are just as candid about the congressional purpose to influence or interfere with state sovereign choices about who may be married. As the title and dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted. The congressional goal was “to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.” Massachusetts, 682 F. 3d, at 12–13. The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law. This raises a most serious question under the Constitution’s Fifth Amendment. DOMA’s operation in practice confirms this purpose. When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of fed- eral law. DOMA writes inequality into the entire United States Code. The particular case at hand concerns the estate tax, but DOMA is more than a simple determi- nation of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits. DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558 , and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. See 5 U. S. C. §§8901(5), 8905. It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations. See 11 U. S. C. §§101(14A), 507(a)(1)(A), 523(a)(5), 523(a)(15). It forces them to follow a complicated procedure to file their state and federal taxes jointly. Technical Bulletin TB–55, 2010 Vt. Tax LEXIS 6 (Oct. 7, 2010); Brief for Federalism Scholars as Amici Curiae 34. It prohibits them from being buried together in veterans’ cemeteries. National Cemetery Administration Directive 3210/1, p. 37 (June 4, 2008). For certain married couples, DOMA’s unequal effects are even more serious. The federal penal code makes it a crime to “assaul[t], kidna[p], or murde[r] . . . a member of the immediate family” of “a United States official, a United States judge, [or] a Federal law enforcement officer,” 18 U. S. C. §115(a)(1)(A), with the intent to influence or retaliate against that official, §115(a)(1). Although a “spouse” qualifies as a member of the officer’s “immediate family,” §115(c)(2), DOMA makes this protection inapplicable to same-sex spouses. DOMA also brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. See 26 U. S. C. §106; Treas. Reg. §1.106–1, 26 CFR §1.106–1 (2012); IRS Private Letter Ruling 9850011 (Sept. 10, 1998). And it denies or re- duces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security. See Social Security Administration, Social Security Survivors Benefits 5 (2012) (benefits available to a surviving spouse caring for the couple’s child), online at http://www.ssa.gov/pubs/EN-05-10084.pdf. DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force. For instance, because it is expected that spouses will support each other as they pursue educational opportunities, federal law takes into consideration a spouse’s income in calculating a student’s fed- eral financial aid eligibility. See 20 U. S. C. §1087nn(b). Same-sex married couples are exempt from this requirement. The same is true with respect to federal ethics rules. Federal executive and agency officials are prohibited from “participat[ing] personally and substantially” in matters as to which they or their spouses have a financial interest. 18 U. S. C. §208(a). A similar statute prohibits Senators, Senate employees, and their spouses from accepting high-value gifts from certain sources, see 2 U. S. C. §31–2(a)(1), and another mandates detailed financial disclosures by numerous high-ranking officials and their spouses. See 5 U. S. C. App. §§102(a), (e). Under DOMA, however, these Government-integrity rules do not apply to same-sex spouses. * * * The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment. What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U. S., at 499–500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200 –218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved. The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages. The judgment of the Court of Appeals for the Second Circuit is affirmed. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UNITED STATES v. WINDSOR, executor of the ESTATE OF SPYER, et al. certiorari to the united states court of appeals for the second circuit No. 12–307. Argued March 27, 2013—Decided June 26, 2013 The State of New York recognizes the marriage of New York residents Edith Windsor and Thea Spyer, who wed in Ontario, Canada, in 2007. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses, but was barred from doing so by §3 of the federal Defense of Marriage Act (DOMA), which amended the Dictionary Act—a law providing rules of construction for over 1,000 federal laws and the whole realm of federal regulations—to define “marriage” and “spouse” as excluding same-sex partners. Windsor paid $363,053 in estate taxes and sought a refund, which the Internal Revenue Service denied. Windsor brought this refund suit, contending that DOMA violates the principles of equal protection incorporated in the Fifth Amendment. While the suit was pending, the Attorney General notified the Speaker of the House of Representatives that the Department of Justice would no longer defend §3’s constitutionality. In response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend §3’s constitutionality. The District Court permitted the intervention. On the merits, the court ruled against the United States, finding §3 unconstitutional and ordering the Treasury to refund Windsor’s tax with interest. The Second Circuit affirmed. The United States has not complied with the judgment. Held: 1. This Court has jurisdiction to consider the merits of the case. This case clearly presented a concrete disagreement between opposing parties that was suitable for judicial resolution in the District Court, but the Executive’s decision not to defend §3’s constitutionality in court while continuing to deny refunds and assess deficiencies introduces a complication. Given the Government’s concession, amicus contends, once the District Court ordered the refund, the case should have ended and the appeal been dismissed. But this argument elides the distinction between Article III’s jurisdictional requirements and the prudential limits on its exercise, which are “essentially matters of judicial self-governance.” Warth v. Seldin, 422 U.S. 490, 500. Here, the United States retains a stake sufficient to support Article III jurisdiction on appeal and in this Court. The refund it was ordered to pay Windsor is “a real and immediate economic injury,” Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 599, even if the Executive disagrees with §3 of DOMA. Windsor’s ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. Cf. INS v. Chadha, 462 U.S. 919. Prudential considerations, however, demand that there be “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. 186, 204. Unlike Article III requirements—which must be satisfied by the parties before judicial consideration is appropriate—prudential factors that counsel against hearing this case are subject to “countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.” Warth, supra, at 500–501. One such consideration is the extent to which adversarial presentation of the issues is ensured by the participation of amici curiae prepared to defend with vigor the legislative act’s constitutionality. See Chadha, supra, at 940. Here, BLAG’s substantial adversarial argument for §3’s constitutionality satisfies prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree. This conclusion does not mean that it is appropriate for the Executive as a routine exercise to challenge statutes in court instead of making the case to Congress for amendment or repeal. But this case is not routine, and BLAG’s capable defense ensures that the prudential issues do not cloud the merits question, which is of immediate importance to the Federal Government and to hundreds of thousands of persons. . 2. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. . (a) By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect. Assessing the validity of that intervention requires discussing the historical and traditional extent of state power and authority over marriage. Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U.S. 1, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa, 419 U.S. 393, 404. The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States,” Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383–384. Marriage laws may vary from State to State, but they are consistent within each State. DOMA rejects this long-established precept. The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. But the Federal Government uses the state-defined class for the opposite purpose—to impose restrictions and disabilities. The question is whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment, since what New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. New York’s actions were a proper exercise of its sovereign authority. They reflect both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. . (b) By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U.S. 528, 534–535. DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. BLAG’s arguments are just as candid about the congressional purpose. DOMA’s operation in practice confirms this purpose. It frustrates New York’s objective of eliminating inequality by writing inequality into the entire United States Code. DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. . 699 F.3d 169, affirmed. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, and in which Roberts, C. J., joined as to Part I. Alito, J., filed a dissenting opinion, in which Thomas, J., joined as to Parts II and III.

The Defense of Marriage Act (DOMA) contains two operative sections: (1) defines marriage as only a legal union between one man and one woman as husband and wife, and (2) excludes a same-sex partner from the definition of "spouse" as that term is used in federal statutes. Section 3 defines marriage to mean only a person of the opposite sex who is a husband or wife. The enactment's comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms controls over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law. Windsor and Spyer met in New York City in 1963 and began a long-term relationship in 1993. Spyer died in February, and Windsor did not qualify for the marital exemption from the federal estate tax, which excludes from taxation any interest in property which passes or has passed from the decedent to his surviving spouse. Windsor paid federal estate taxes and sought a refund, but the Internal Revenue Service denied the refund, concluding that, under DOMA, she was not a widow. She then brought this refund suit in Federal District Court, contending that DOMA violates the guarantee of equal protection, as applied to the Federal Government through the Fifth Amendment. While the suit was pending, the Speaker of the House of Representatives announced that the Department of Justice would defend the constitutionality of §3 of DOMA. The District Court granted intervention by the Bipartisan Legal Advisory Group (BLAG) as an interested party. On the merits of the refund suit, the District Court ruled against the United States, holding that §3 is unconstitutional and ordered the Treasury to refund the tax with interest. The Court of Appeals affirmed, applying heightened scrutiny to classifications based on sexual orientation. Held: 1. The United States has standing to appeal to this Court. . (a) When this case was in District Court it presented a concrete disagreement between opposing parties, a dispute suitable for judicial resolution. That the Executive may welcome this order to pay Windsor the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it not. This Court has the prudential power to hear a case and issue a ruling even when one party is reluctant to prevail in its position. Although Congress has great authority to design laws to further federal policy, it cannot deny the liberty protected by the Due Process Clause of that Amendment. The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-Sex marriage. Such interference with the equal dignity of marriage, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute, and it was its essence. Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges. DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Government. In determining whether a law is valid under the Constitution, the courts must be satisfied that the parties have a valid legal argument. Unlike Article III, the requirements for judicial determination must be met by the parties before the enactment of a statute. Pp. 462 U. S. 422. (b) When Congress has passed a statute to nullify a particular statute, it does not mean that it must be able to make a particular determination on particular grounds. Here, the attorneys for BLAG present a substantial argument for §3's constitutionality. BLAG has sharp adversarial presentation of the issues, satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree. Moreover, BLAG's capable defense of the law ensures that these prudential issues do not cloud the merits question. These cir- cumstances support the Court's decision to proceed to the merits. 2. DOMA is unconstitutional as a deprivation of the liberty of the person protected by Fifth Amendment of the Constitution. That liberty contains within it the prohibition against denying to any person the equal protection of the laws. Accordingly, it is inappropriate for this Court to grant certiorari and proceed to rule on the merits, for the Government seeks no redress from the judgment entered against it. See, e.g., Bolling v. Sharpe,; Adarand Constructors, Inc. v. Peña, 515 U.S. 200-217 (CA9 1990)). The Constitution itself withdraws from Government the power to degrade or demean in the way this law does, and the Equal Protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the better understood and preserved. DOUGLAS, BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.,

2012_12-484

https://www.oyez.org/cases/2012/12-484

. When the law grants persons the right to compensation for injury from wrongful conduct, there must be some demonstrated connection, some link, between the injury sustained and the wrong alleged. The requisite relation between prohibited conduct and compensable injury is governed by the principles of causation, a subject most often arising in elaborating the law of torts. This case requires the Court to define those rules in the context of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., which provides remedies to employees for injuries related to discriminatory conduct and associated wrongs by employers. Title VII is central to the federal policy of prohibiting wrongful discrimination in the Nation’s workplaces and in all sectors of economic endeavor. This opinion discusses the causation rules for two categories of wrongful employer conduct prohibited by Title VII. The first type is called, for purposes of this opinion, status-based discrimination. The term is used here to refer to basic workplace protection such as prohibitions against employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like. See §2000e–2(a). The second type of conduct is employer retaliation on account of an employee’s having opposed, complained of, or sought remedies for, unlawful workplace discrimination. See §2000e–3(a). An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision. This principle is the result of an earlier case from this Court, Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) , and an ensuing statutory amendment by Congress that codified in part and abrogated in part the holding in Price Waterhouse, see §§2000e–2(m), 2000e–5(g)(2)(B). The question the Court must answer here is whether that lessened causation standard is applicable to claims of unlawful employer retaliation under §2000e–3(a). Although the Court has not addressed the question of the causation showing required to establish liability for a Title VII retaliation claim, it has addressed the issue of causation in general in a case involving employer discrimination under a separate but related statute, the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §623. See Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009) . In Gross, the Court concluded that the ADEA requires proof that the prohibited criterion was the but-for cause of the prohibited conduct. The holding and analysis of that decision are instructive here. I Petitioner, the University of Texas Southwestern Medical Center (University), is an academic institution within the University of Texas system. The University specializes in medical education for aspiring physicians, health professionals, and scientists. Over the years, the University has affiliated itself with a number of healthcare facilities including, as relevant in this case, Parkland Memorial Hospital (Hospital). As provided in its affiliation agreement with the University, the Hospital permits the University’s students to gain clinical experience working in its facilities. The agreement also requires the Hospital to offer empty staff physician posts to the University’s faculty members, see App. 361–362, 366, and, accordingly, most of the staff physician positions at the Hospital are filled by those faculty members. Respondent is a medical doctor of Middle Eastern descent who specializes in internal medicine and infectious diseases. In 1995, he was hired to work both as a member of the University’s faculty and a staff physician at the Hospital. He left both positions in 1998 for additional medical education and then returned in 2001 as an assistant professor at the University and, once again, as a physician at the Hospital. In 2004, Dr. Beth Levine was hired as the University’s Chief of Infectious Disease Medicine. In that position Levine became respondent’s ultimate (though not direct) superior. Respondent alleged that Levine was biased against him on account of his religion and ethnic heritage, a bias manifested by undeserved scrutiny of his billing practices and productivity, as well as comments that “ ‘Middle Easterners are lazy.’ ” 674 F. 3d 448, 450 (CA5 2012). On different occasions during his employment, respondent met with Dr. Gregory Fitz, the University’s Chair of Internal Medicine and Levine’s supervisor, to complain about Levine’s alleged harassment. Despite obtaining a promotion with Levine’s assistance in 2006, respondent continued to believe that she was biased against him. So he tried to arrange to continue working at the Hospital without also being on the University’s faculty. After preliminary negotiations with the Hospital suggested this might be possible, respondent resigned his teaching post in July 2006 and sent a letter to Dr. Fitz (among others), in which he stated that the reason for his departure was harassment by Levine. That harassment, he asserted, “ ‘stems from . . . religious, racial and cultural bias against Arabs and Muslims.’ ” Id., at 451. After reading that letter, Dr. Fitz expressed consternation at respondent’s accusations, saying that Levine had been “publicly humiliated by th[e] letter” and that it was “very important that she be publicly exonerated.” App. 41. Meanwhile, the Hospital had offered respondent a job as a staff physician, as it had indicated it would. On learning of that offer, Dr. Fitz protested to the Hospital, asserting that the offer was inconsistent with the affiliation agreement’s requirement that all staff physicians also be members of the University faculty. The Hospital then withdrew its offer. After exhausting his administrative remedies, respondent filed this Title VII suit in the United States District Court for the Northern District of Texas. He alleged two discrete violations of Title VII. The first was a status-based discrimination claim under §2000e–2(a). Respondent alleged that Dr. Levine’s racially and religiously moti- vated harassment had resulted in his constructive discharge from the University. Respondent’s second claim was that Dr. Fitz’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about Dr. Levine’s harassment, in violation of §2000e–3(a). 674 F. 3d, at 452. The jury found for respondent on both claims. It awarded him over $400,000 in backpay and more than $3 million in compensatory damages. The District Court later reduced the compensatory damages award to $300,000. On appeal, the Court of Appeals for the Fifth Circuit affirmed in part and vacated in part. The court first concluded that respondent had submitted insufficient evidence in support of his constructive-discharge claim, so it vacated that portion of the jury’s verdict. The court affirmed as to the retaliation finding, however, on the theory that retaliation claims brought under §2000e–3(a)—like claims of status-based discrimination under §2000e–2(a)—require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause. See id., at 454, n. 16 (citing Smith v. Xerox Corp., 602 F. 3d 320, 330 (CA5 2010)). It further held that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against respondent for his complaints against Levine. The Court of Appeals then remanded for a redetermination of damages in light of its decision to vacate the constructive-discharge verdict. Four judges dissented from the court’s decision not to rehear the case en banc, arguing that the Circuit’s application of the motivating-factor standard to retaliation cases was “an erroneous interpretation of [Title VII] and controlling caselaw” and should be overruled en banc. 688 F. 3d 211, 213–214 (CA5 2012) (Smith, J., dissenting from denial of rehearing en banc). Certiorari was granted. 568 U. S. ___ (2013). II A This case requires the Court to define the proper standard of causation for Title VII retaliation claims. Causation in fact—i.e., proof that the defendant’s conduct did in fact cause the plaintiff’s injury—is a standard requirement of any tort claim, see Restatement of Torts §9 (1934) (definition of “legal cause”); §431, Comment a (same); §279, and Comment c (intentional infliction of physical harm); §280 (other intentional torts); §281(c) (negligence). This includes federal statutory claims of workplace discrimination. Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (1993) (In intentional-discrimination cases, “liability depends on whether the protected trait” “actually motivated the employer’s decision” and “had a determinative in- fluence on the outcome”); Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 711 (1978) (explaining that the “simple test” for determining a discriminatory employment practice is “whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different” (internal quotation marks omitted)). In the usual course, this standard requires the plaintiff to show “that the harm would not have occurred” in the absence of—that is, but for—the defendant’s conduct. Restatement of Torts §431, Comment a (negligence); §432(1), and Comment a (same); see §279, and Comment c (intentional infliction of bodily harm); §280 (other intentional torts); Restatement (Third) of Torts: Liability for Physical and Emotional Harm §27, and Comment b (2010) (noting the existence of an exception for cases where an injured party can prove the existence of multiple, independently sufficient factual causes, but observing that “cases invoking the concept are rare”). See also Restatement (Second) of Torts §432(1) (1963 and 1964) (negligence claims); §870, Comment l (intentional injury to another); cf. §435a, and Comment a (legal cause for intentional harm). It is thus textbook tort law that an action “is not regarded as a cause of an event if the particular event would have occurred without it.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984). This, then, is the background against which Congress legislated in enacting Title VII, and these are the default rules it is presumed to have incorporated, absent an indication to the contrary in the statute itself. See Meyer v. Holley, 537 U. S. 280, 285 (2003) ; Carey v. Piphus, 435 U. S. 247 –258 (1978). B Since the statute’s passage in 1964, it has prohibited employers from discriminating against their employees on any of seven specified criteria. Five of them—race, color, religion, sex, and national origin—are personal characteristics and are set forth in §2000e–2. (As noted at the outset, discrimination based on these five characteristics is called status-based discrimination in this opinion.) And then there is a point of great import for this case: The two remaining categories of wrongful employer conduct—the employee’s opposition to employment discrimination, and the employee’s submission of or support for a complaint that alleges employment discrimination—are not wrongs based on personal traits but rather types of protected employee conduct. These latter two categories are covered by a separate, subsequent section of Title VII, §2000e–3(a). Under the status-based discrimination provision, it is an “unlawful employment practice” for an employer “to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a). In its 1989 decision in Price Waterhouse, the Court sought to explain the causation standard imposed by this language. It addressed in particular what it means for an action to be taken “because of” an individual’s race, religion, or nationality. Although no opinion in that case commanded a majority, six Justices did agree that a plaintiff could prevail on a claim of status-based discrimination if he or she could show that one of the prohibited traits was a “motivating” or “substantial” factor in the employer’s decision. 490 U. S., at 258 (plurality opinion); id., at 259 (White, J., concurring in judgment); id., at 276 (O’Connor, J., concurring in judgment). If the plaintiff made that showing, the burden of persuasion would shift to the employer, which could escape liability if it could prove that it would have taken the same employment action in the absence of all discriminatory animus. Id., at 258 (plurality opinion); id., at 259–260 (opinion of White, J.); id., at 276–277 (opinion of O’Connor, J.). In other words, the employer had to show that a discriminatory motive was not the but-for cause of the adverse employment action. Two years later, Congress passed the Civil Rights Act of 1991 (1991 Act), 105Stat. 1071. This statute (which had many other provisions) codified the burden-shifting and lessened-causation framework of Price Waterhouse in part but also rejected it to a substantial degree. The legislation first added a new subsection to the end of §2000e–2, i.e., Title VII’s principal ban on status-based discrimination. See §107(a), 105Stat. 1075. The new provision, §2000e–2(m), states: “[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” This, of course, is a lessened causation standard. The 1991 Act also abrogated a portion of Price Waterhouse’s framework by removing the employer’s ability to defeat liability once a plaintiff proved the existence of an impermissible motivating factor. See Gross, 557 U. S., at 178, n. 5. In its place, Congress enacted §2000e–5(g)(2), which provides: “(B) On a claim in which an individual proves a violation under section 2000e–2(m) of this title and [the employer] demonstrates that [it] would have taken the same action in the absence of the impermissible motivating factor, the court— “(i) may grant declaratory relief, injunctive relief . . . and [limited] attorney’s fees and costs . . . ; and “(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment . . . .” So, in short, the 1991 Act substituted a new burden-shifting framework for the one endorsed by Price Waterhouse. Under that new regime, a plaintiff could obtain declaratory relief, attorney’s fees and costs, and some forms of injunctive relief based solely on proof that race, color, religion, sex, or nationality was a motivating factor in the employment action; but the employer’s proof that it would still have taken the same employment action would save it from monetary damages and a reinstatement order. See Gross, 557 U. S., at 178, n. 5; see also id., at 175, n. 2, 177, n. 3. After Price Waterhouse and the 1991 Act, considerable time elapsed before the Court returned again to the meaning of “because” and the problem of causation. This time it arose in the context of a different, yet similar statute, the ADEA, 29 U. S. C. §623(a). See Gross, supra. Much like the Title VII statute in Price Waterhouse, the relevant portion of the ADEA provided that “ ‘[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.’ ” 557 U. S., at 176 (quoting §623(a)(1); emphasis and ellipsis in original). Concentrating first and foremost on the meaning of the phrase “ ‘because of . . . age,’ ” the Court in Gross explained that the ordinary meaning of “ ‘because of’ ” is “ ‘by reason of’ ” or “ ‘on account of.’ ” Id., at 176 (citing 1 Webster’s Third New International Dictionary 194 (1966); 1 Oxford English Dictionary 746 (1933); The Random House Dictionary of the English Language 132 (1966); emphasis in original). Thus, the “requirement that an employer took adverse action ‘because of’ age [meant] that age was the ‘reason’ that the employer decided to act,” or, in other words, that “age was the ‘but-for’ cause of the employer’s adverse decision.” 557 U. S., at 176. See also Safeco Ins. Co. of America v. Burr, 551 U. S. 47 –64, and n. 14 (2007) (noting that “because of” means “based on” and that “ ‘based on’ indicates a but-for causal relationship”); Holmes v. Securities Investor Protection Corporation, 503 U. S. 258 –266 (1992) (equating “by reason of” with “ ‘but for’ cause”). In the course of approving this construction, Gross declined to adopt the interpretation endorsed by the plurality and concurring opinions in Price Waterhouse. Noting that “the ADEA must be ‘read . . . the way Congress wrote it,’ ” 557 U. S., at 179 (quoting Meacham v. Knolls Atomic Power Laboratory, 554 U. S. 84, 102 (2008) ), the Court concluded that “the textual differences between Title VII and the ADEA” “prevent[ed] us from applying Price Waterhouse . . . to federal age discrimination claims,” 557 U. S., at 175, n. 2. In particular, the Court stressed the congressional choice not to add a provision like §2000e–2(m) to the ADEA despite making numerous other changes to the latter statute in the 1991 Act. Id., at 174–175 (citing EEOC v. Arabian American Oil Co., 499 U. S. 244, 256 (1991) ); 557 U. S., at 177, n. 3 (citing 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 270 (2009) ). Finally, the Court in Gross held that it would not be proper to read Price Waterhouse as announcing a rule that applied to both statutes, despite their similar wording and near-contemporaneous enactment. 557 U. S., at 178, n. 5. This different reading was necessary, the Court concluded, because Congress’ 1991 amendments to Title VII, including its “careful tailoring of the ‘motivating factor’ claim” and the substitution of §2000e–5(g)(2)(B) for Price Waterhouse’s full affirmative defense, indicated that the motivating-factor standard was not an organic part of Title VII and thus could not be read into the ADEA. See 557 U. S., at 178, n. 5. In Gross, the Court was careful to restrict its analysis to the statute before it and withhold judgment on the proper resolution of a case, such as this, which arose under Title VII rather than the ADEA. But the particular confines of Gross do not deprive it of all persuasive force. Indeed, that opinion holds two insights for the present case. The first is textual and concerns the proper interpretation of the term “because” as it relates to the principles of causation underlying both §623(a) and §2000e–3(a). The second is the significance of Congress’ structural choices in both Title VII itself and the law’s 1991 amendments. These principles do not decide the present case but do inform its analysis, for the issues possess significant parallels. III A As noted, Title VII’s antiretaliation provision, which is set forth in §2000e–3(a), appears in a different section from Title VII’s ban on status-based discrimination. The antiretaliation provision states, in relevant part: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” This enactment, like the statute at issue in Gross, makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. Cf. 29 U. S. C. §623(a)(1). Given the lack of any meaningful textual difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action. See Gross, supra, at 176. The principal counterargument offered by respondent and the United States relies on their different understanding of the motivating-factor section, which—on its face—applies only to status discrimination, discrimination on the basis of race, color, religion, sex, and national origin. In substance, they contend that: (1) retaliation is defined by the statute to be an unlawful employment practice; (2) §2000e–2(m) allows unlawful employment practices to be proved based on a showing that race, color, religion, sex, or national origin was a motivating factor for—and not necessarily the but-for factor in—the challenged employment action; and (3) the Court has, as a matter of course, held that “retaliation for complaining about race discrimination is ‘discrimination based on race.’ ” Brief for United States as Amicus Curiae 14; see id., at 11–14; Brief for Respondent 16–19. There are three main flaws in this reading of §2000e–2(m). The first is that it is inconsistent with the provision’s plain language. It must be acknowledged that because Title VII defines “unlawful employment practice” to include retaliation, the question presented by this case would be different if §2000e–2(m) extended its coverage to all unlawful employment practices. As actually written, however, the text of the motivating-factor provision, while it begins by referring to “unlawful employment practices,” then proceeds to address only five of the seven prohibited discriminatory actions—actions based on the employee’s status, i.e., race, color, religion, sex, and national origin. This indicates Congress’ intent to confine that provision’s coverage to only those types of employment practices. The text of §2000e–2(m) says nothing about retaliation claims. Given this clear language, it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope. Gardner v. Collins, 2 Pet. 58, 93 (1829) (“What the legislative intention was, can be derived only from the words they have used; and we cannot speculate beyond the reasonable import of these words”); see Sebelius v. Cloer, 569 U. S. ___, ___ (2013) (slip op., at 8). The second problem with this reading is its inconsistency with the design and structure of the statute as a whole. See Gross, 557 U. S., at 175, n. 2, 178, n. 5. Just as Congress’ choice of words is presumed to be deliberate, so too are its structural choices. See id., at 177, n. 3. When Congress wrote the motivating-factor provision in 1991, it chose to insert it as a subsection within §2000e–2, which contains Title VII’s ban on status-based discrimination, §§2000e–2(a) to (d), (l), and says nothing about retaliation. See 1991 Act, §107(a), 105Stat. 1075 (directing that “§2000e–2 . . . [be] further amended by adding at the end the following new subsection . . . (m)”). The title of the section of the 1991 Act that created §2000e–2(m)—“Clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices”—also indicates that Congress determined to address only claims of status-based discrimination, not retaliation. See §107(a), id., at 1075. What is more, a different portion of the 1991 Act contains an express reference to all unlawful employment actions, thereby reinforcing the conclusion that Congress acted deliberately when it omitted retaliation claims from §2000e–2(m). See Arabian American Oil Co., 499 U. S., at 256 (congressional amendment of ADEA on a similar subject coupled with congressional failure to amend Title VII weighs against conclusion that the ADEA’s standard applies to Title VII); see also Gross, supra, at 177, n. 3. The relevant portion of the 1991 Act, §109(b), allowed certain overseas operations by U. S. employers to engage in “any practice prohibited by section 703 or 704,” i.e., §2000e–2 or §2000e–3, “if compliance with such section would cause such employer . . . to violate the law of the foreign country in which such workplace is located.” 105Stat. 1077. If Congress had desired to make the motivating-factor standard applicable to all Title VII claims, it could have used language similar to that which it invoked in §109. See Arabian American Oil Co., supra, at 256. Or, it could have inserted the motivating-factor provision as part of a section that applies to all such claims, such as §2000e–5, which establishes the rules and remedies for all Title VII enforcement actions. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000) . But in writing §2000e–2(m), Congress did neither of those things, and “[w]e must give effect to Congress’ choice.” Gross, supra, at 177, n. 3. The third problem with respondent’s and the Government’s reading of the motivating-factor standard is in its submission that this Court’s decisions interpreting federal antidiscrimination law have, as a general matter, treated bans on status-based discrimination as also prohibiting retaliation. In support of this proposition, both respondent and the United States rely upon decisions in which this Court has “read [a] broadly worded civil rights statute . . . as including an antiretaliation remedy.” CBOCS West, Inc. v. Humphries, 553 U. S. 442 –453 (2008). In CBOCS, for example, the Court held that 42 U. S. C. §1981—which declares that all persons “shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens”—prohibits not only racial discrimination but also retaliation against those who oppose it. 553 U. S., at 445. And in Gómez-Pérez v. Potter, 553 U. S. 474 (2008) , the Court likewise read a bar on retaliation into the broad wording of the federal-employee provisions of the ADEA. Id., at 479, 487 (“All personnel actions affecting [federal] employees . . . who are at least 40 years of age . . . shall be made free from any discrimination based on age,” 29 U. S. C. §633a(a)); see also Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 173, 179 (2005) ( 20 U. S. C. §1681(a) (Title IX)); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 , n. 3, 237 (1969) ( 42 U. S. C. §1982). These decisions are not controlling here. It is true these cases do state the general proposition that Congress’ enactment of a broadly phrased antidiscrimination statute may signal a concomitant intent to ban retaliation against individuals who oppose that discrimination, even where the statute does not refer to retaliation in so many words. What those cases do not support, however, is the quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for “retaliation.” For one thing, §2000e–2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII. The cases cited by respondent and the Government do not address rules of this sort, and those precedents are of limited relevance here. The approach respondent and the Government suggest is inappropriate in the context of a statute as precise, complex, and exhaustive as Title VII. As noted, the laws at issue in CBOCS, Jackson, and Gómez-Pérez were broad, general bars on discrimination. In interpreting them the Court concluded that by using capacious language Congress expressed the intent to bar retaliation in addition to status-based discrimination. See Gómez-Pérez, supra, at 486–488. In other words, when Congress’ treatment of the subject of prohibited discrimination was both broad and brief, its omission of any specific discussion of retaliation was unremarkable. If Title VII had likewise been phrased in broad and general terms, respondent’s argument might have more force. But that is not how Title VII was written, which makes it incorrect to infer that Congress meant anything other than what the text does say on the subject of retaliation. Unlike Title IX, §1981, §1982, and the federal-sector provisions of the ADEA, Title VII is a detailed statutory scheme. This statute enumerates specific unlawful employment practices. See §§2000e–2(a)(1), (b), (c)(1), (d) (status-based discrimination by employers, employment agencies, labor organizations, and training programs, respectively); §2000e–2(l) (status-based discrimination in employment-related testing); §2000e–3(a) (retaliation for opposing, or making or supporting a complaint about, unlawful employment actions); §2000e–3(b) (advertising a preference for applicants of a particular race, color, religion, sex, or national origin). It defines key terms, see §2000e, and exempts certain types of employers, see §2000e–1. And it creates an administrative agency with both rulemaking and enforcement authority. See §§2000e–5, 2000e–12. This fundamental difference in statutory structure renders inapposite decisions which treated retaliation as an implicit corollary of status-based discrimination. Text may not be divorced from context. In light of Congress’ special care in drawing so precise a statutory scheme, it would be improper to indulge respondent’s suggestion that Congress meant to incorporate the default rules that apply only when Congress writes a broad and undifferentiated statute. See Gómez-Pérez, supra, at 486–488 (when construing the broadly worded federal-sector provision of the ADEA, Court refused to draw inferences from Congress’ amendments to the detailed private-sector provisions); Arabian American Oil Co., 499 U. S., at 256; cf. Jackson, supra, at 175 (distinguishing Title IX’s “broadly written general prohibition on discrimination” from Title VII’s “greater detail [with respect to] the conduct that constitutes discrimination”). Further confirmation of the inapplicability of §2000e–2(m) to retaliation claims may be found in Congress’ approach to the Americans with Disabilities Act of 1990 (ADA), 104Stat. 327. In the ADA Congress provided not just a general prohibition on discrimination “because of [an individual’s] disability,” but also seven paragraphs of detailed description of the practices that would constitute the prohibited discrimination, see §§102(a), (b)(1)–(7), id., at 331–332 (codified at 42 U. S. C. §12112). And, most pertinent for present purposes, it included an express antiretaliation provision, see §503(a), 104Stat. 370 (codified at 42 U. S. C. §12203). That law, which Congress passed only a year before enacting §2000e–2(m) and which speaks in clear and direct terms to the question of retaliation, rebuts the claim that Congress must have intended to use the phrase “race, color, religion, sex, or national origin” as the textual equivalent of “retaliation.” To the contrary, the ADA shows that when Congress elected to address retaliation as part of a detailed statutory scheme, it did so in clear textual terms. The Court confronted a similar structural dispute in Lehman v. Nakshian, 453 U. S. 156 (1981) . The question there was whether the federal-employment provisions of the ADEA, 29 U. S. C. §633a, provided a jury-trial right for claims against the Federal Government. Nakshian, 453 U. S., at 157. In concluding that it did not, the Court noted that the portion of the ADEA that prohibited age discrimination by private, state, and local employers, §626, expressly provided for a jury trial, whereas the federal-sector provisions said nothing about such a right. Id., at 162–163, 168. So, too, here. Congress has in explicit terms altered the standard of causation for one class of claims but not another, despite the obvious opportunity to do so in the 1991 Act. B The proper interpretation and implementation of §2000e–3(a) and its causation standard have central importance to the fair and responsible allocation of resources in the judicial and litigation systems. This is of particular significance because claims of retaliation are being made with ever-increasing frequency. The number of these claims filed with the Equal Employment Opportunity Commission (EEOC) has nearly doubled in the past 15 years—from just over 16,000 in 1997 to over 31,000 in 2012. EEOC, Charge Statistics FY 1997 Through FY 2012, http://www.eeoc.gov/eeoc/statistics/enforcement/ charges.cfm (as visited June 20, 2013, and available in Clerk of Court’s case file). Indeed, the number of retaliation claims filed with the EEOC has now outstripped those for every type of status-based discrimination except race. See ibid. In addition lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor perform- ance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If respondent were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. Cf. Vance v. Ball State Univ., post, at 9–11. It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent. See Brief for National School Boards Association as Amicus Curiae 11–22. Yet there would be a significant risk of that consequence if respondent’s position were adopted here. The facts of this case also demonstrate the legal and factual distinctions between status-based and retaliation claims, as well as the importance of the correct standard of proof. Respondent raised both claims in the District Court. The alleged wrongdoer differed in each: In respondent’s status-based discrimination claim, it was his indirect supervisor, Dr. Levine. In his retaliation claim, it was the Chair of Internal Medicine, Dr. Fitz. The proof required for each claim differed, too. For the status-based claim, respondent was required to show instances of racial slurs, disparate treatment, and other indications of nationality-driven animus by Dr. Levine. Respondent’s retaliation claim, by contrast, relied on the theory that Dr. Fitz was committed to exonerating Dr. Levine and wished to punish respondent for besmirching her reputation. Separately instructed on each type of claim, the jury returned a separate verdict for each, albeit with a single damages award. And the Court of Appeals treated each claim separately, too, finding insufficient evidence on the claim of status-based discrimination. If it were proper to apply the motivating-factor standard to respondent’s retaliation claim, the University might well be subject to liability on account of Dr. Fitz’s alleged desire to exonerate Dr. Levine, even if it could also be shown that the terms of the affiliation agreement pre- cluded the Hospital’s hiring of respondent and that the University would have sought to prevent respondent’s hiring in order to honor that agreement in any event. That result would be inconsistent with the both the text and purpose of Title VII. In sum, Title VII defines the term “unlawful employment practice” as discrimination on the basis of any of seven prohibited criteria: race, color, religion, sex, national origin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination. The text of §2000e–2(m) mentions just the first five of these factors, the status-based ones; and it omits the final two, which deal with retaliation. When it added §2000e–2(m) to Title VII in 1991, Congress inserted it within the section of the statute that deals only with those same five criteria, not the section that deals with retaliation claims or one of the sections that apply to all claims of unlawful employment practices. And while the Court has inferred a congressional intent to prohibit retaliation when confronted with broadly worded antidiscrimination statutes, Title VII’s detailed structure makes that inference inappropriate here. Based on these textual and structural indications, the Court now concludes as follows: Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer. IV Respondent and the Government also argue that applying the motivating-factor provision’s lessened causation standard to retaliation claims would be consistent with longstanding agency views, contained in a guidance manual published by the EEOC. It urges that those views are entitled to deference under this Court’s decision in Skidmore v. Swift & Co., 323 U. S. 134 (1944) . See National Railroad Passenger Corporation v. Morgan, 536 U. S. 101 , n. 6 (2002). The weight of deference afforded to agency interpretations under Skidmore depends upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” 323 U. S., at 140; see Vance, post, at 9, n. 4. According to the manual in question, the causation element of a retaliation claim is satisfied if “there is credible direct evidence that retaliation was a motive for the challenged action,” regardless of whether there is also “[e]vidence as to [a] legitimate motive.” 2 EEOC Compliance Manual §8–II(E)(1), pp. 614:0007–614:0008 (Mar. 2003). After noting a division of authority as to whether motivating-factor or but-for causation should apply to retaliation claims, the manual offers two rationales in support of adopting the former standard. The first is that “[c]ourts have long held that the evidentiary framework for proving [status-based] discrimination . . . also applies to claims of discrimination based on retaliation.” Id., at 614:0008, n. 45. Second, the manual states that “an interpretation . . . that permits proven retaliation to go unpunished undermines the purpose of the anti-retaliation provisions of maintaining unfettered access to the statutory remedial mechanism.” Ibid. These explanations lack the persuasive force that is a necessary precondition to deference under Skidmore. See 323 U. S., at 140; Vance, post, at 9, n. 4. As to the first rationale, while the settled judicial construction of a particular statute is of course relevant in ascertaining statutory meaning, see Lorillard v. Pons, 434 U. S. 575 –581 (1978), the manual’s discussion fails to address the particular interplay among the status-based discrimination provision (§2000e–2(a)), the antiretaliation provision (§2000e–3(a)), and the motivating-factor provision (§2000e–2(m)). Other federal antidiscrimination statutes do not have the structure of statutory subsections that control the outcome at issue here. The manual’s failure to address the specific provisions of this statutory scheme, coupled with the generic nature of its discussion of the causation standards for status-based discrimination and retaliation claims, call the manual’s conclusions into serious question. See Kentucky Retirement Systems v. EEOC, 554 U. S. 135 –150 (2008). The manual’s second argument is unpersuasive, too; for its reasoning is circular. It asserts the lessened causation standard is necessary in order to prevent “proven retaliation” from “go[ing] unpunished.” 2 EEOC Compliance Manual §8–II(E)(1), at 614:0008, n. 45. Yet this assumes the answer to the central question at issue here, which is what causal relationship must be shown in order to prove retaliation. Respondent’s final argument, in which he is not joined by the United States, is that even if §2000e–2(m) does not control the outcome in this case, the standard applied by Price Waterhouse should control instead. That assertion is incorrect. First, this position is foreclosed by the 1991 Act’s amendments to Title VII. As noted above, Price Waterhouse adopted a complex burden-shifting framework. Congress displaced this framework by enacting §2000e–2(m) (which adopts the motivating-factor standard for status-based discrimination claims) and §2000e–5(g)(2)(B) (which replaces employers’ total defense with a remedial limitation). See Gross, 557 U. S., at 175, n. 2, 177, n. 3, 178, n. 5. Given the careful balance of lessened causation and reduced remedies Congress struck in the 1991 Act, there is no reason to think that the different balance articulated by Price Waterhouse somehow survived that legislation’s passage. Second, even if this argument were still available, it would be inconsistent with the Gross Court’s reading (and the plain textual meaning) of the word “because” as it appears in both §623(a) and §2000e–3(a). See Gross, supra, at 176–177. For these reasons, the rule of Price Waterhouse is not controlling here. V The text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under §2000e–3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer. The University claims that a fair application of this standard, which is more demanding than the motivating-factor standard adopted by the Court of Appeals, entitles it to judgment as a matter of law. It asks the Court to so hold. That question, however, is better suited to resolution by courts closer to the facts of this case. The judgment of the Court of Appeals for the Fifth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER v. NASSAR certiorari to the united states court of appeals for the fifth circuit No. 12–484. Argued April 24, 2013—Decided June 24, 2013 Petitioner, a university medical center (University) that is part of the University of Texas system, specializes in medical education. It has an affiliation agreement with Parkland Memorial Hospital (Hospital), which requires the Hospital to offer vacant staff physician posts to University faculty members. Respondent, a physician of Middle Eastern descent who was both a University faculty member and a Hospital staff physician, claimed that Dr. Levine, one of his supervisors at the University, was biased against him on account of his religion and ethnic heritage. He complained to Dr. Fitz, Levine’s supervisor. But after he arranged to continue working at the Hospital without also being on the University’s faculty, he resigned his teaching post and sent a letter to Fitz and others, stating that he was leaving because of Levine’s harassment. Fitz, upset at Levine’s public humiliation and wanting public exoneration for her, objected to the Hospital’s job offer, which was then withdrawn. Respondent filed suit, alleging two discrete Title VII violations. First, he alleged that Levine’s racially and religiously motivated harassment had resulted in his constructive discharge from the University, in violation of 42 U. S. C. §2000e–2(a), which prohibits an employer from discriminating against an employee “because of such individual’s race, color, religion, sex, and national origin” (referred to here as status-based discrimination). Second, he claimed that Fitz’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about Levine’s harassment, in violation of §2000e–3(a), which prohibits employer retaliation “because [an employee] has opposed . . . an unlawful employment practice . . . or . . . made a [Title VII] charge.” The jury found for respondent on both claims. The Fifth Circuit vacated as to the constructive-discharge claim, but affirmed as to the retaliation finding on the theory that retaliation claims brought under §2000e–3(a)—like §2000e–2(a) status-based claims—require only a showing that retaliation was a motivating factor for the adverse employment action, not its but-for cause, see §2000e–2(m). And it found that the evidence supported a finding that Fitz was motivated, at least in part, to retaliate against respondent for his complaints about Levine. Held: Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m). . (a) In defining the proper causation standard for Title VII retaliation claims, it is presumed that Congress incorporated tort law’s causation in fact standard—i.e., proof that the defendant’s conduct did in fact cause the plaintiff’s injury—absent an indication to the contrary in the statute itself. See Meyer v. Holley, 537 U.S. 280, 285. An employee alleging status-based discrimination under §2000e–2 need not show “but-for” causation. It suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives for the decision. This principle is the result of Price Waterhouse v. Hopkins, 490 U.S. 228, and the ensuing Civil Rights Act of 1991 (1991 Act), which substituted a new burden-shifting framework for the one endorsed by Price Waterhouse. As relevant here, that Act added a new subsection to §2000e–2, providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice,” §2000e–2(m). Also relevant here is this Court’s decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176, which interprets the Age Discrimination in Employment Act of 1967 (ADEA) phrase “because of . . . age,” 29 U. S. C. §623(a)(1). Gross holds two insights that inform the analysis of this case. The first is textual and concerns the proper interpretation of the term “because” as it relates to the principles of causation underlying both §623(a) and §2000e–3(a). The second is the significance of Congress’ structural choices in both Title VII itself and the 1991 Act. . (b) Title VII’s antiretaliation provision appears in a different section from its status-based discrimination ban. And, like §623(a)(1), the ADEA provision in Gross, §2000e–3(a) makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. Given the lack of any meaningful textual difference between §2000e–3(a) and §623(a)(1), the proper conclusion is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action. Respondent and the United States maintain that §2000e–2(m)’s motivating-factor test applies, but that reading is flawed. First, it is inconsistent with the provision’s plain language, which addresses only race, color, religion, sex, and national origin discrimination and says nothing about retaliation. Second, their reading is inconsistent with the statute’s design and structure. Congress inserted the motivating-factor provision as a subsection within §2000e–2, which deals only with status-based discrimination. The conclusion that Congress acted deliberately in omitting retaliation claims from §2000–2(m) is reinforced by the fact that another part of the 1991 Act, §109, expressly refers to all unlawful employment actions. See EEOC v. Arabian American Oil Co., 499 U.S. 244, 256. Third, the cases they rely on, which state the general proposition that Congress’ enactment of a broadly phrased antidiscrimination statute may signal a concomitant intent to ban retaliation against individuals who oppose that discrimination, see, e.g., CBOCS West, Inc. v. Humphries, 553 U.S. 442, 452–453; Gómez-Pérez v. Potter, 553 U.S. 474, do not support the quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for “retaliation,” especially in a precise, complex, and exhaustive statute like Title VII. The Americans with Disabilities Act of 1990, which contains seven paragraphs of detailed description of the practices constituting prohibited discrimination, as well as an express antiretaliation provision, and which was passed only a year before §2000e–2(m)’s enactment, shows that when Congress elected to address retaliation as part of a detailed statutory scheme, it did so clearly. . (c) The proper interpretation and implementation of §2000e–3(a) and its causation standard are of central importance to the fair and responsible allocation of resources in the judicial and litigation systems, particularly since retaliation claims are being made with ever-increasing frequency. Lessening the causation standard could also contribute to the filing of frivolous claims, siphoning resources from efforts by employers, agencies, and courts to combat workplace harassment. . (d) Respondent and the Government argue that their view would be consistent with longstanding agency views contained in an Equal Employment Opportunity Commission guidance manual, but the manual’s explanations for its views lack the persuasive force that is a necessary precondition to deference under Skidmore v. Swift & Co., 323 U.S. 134, 140. Respondent’s final argument—that if §2000e–2(m) does not control, then the Price Waterhouse standard should—is foreclosed by the 1991 Act’s amendments to Title VII, which displaced the Price Waterhouse framework. . 674 F.3d 448, vacated and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.

Title VII of the Civil Rights Act of 1964 provides remedies to employees for injuries related to discriminatory conduct and associated wrongs by employers. The requisite relation between prohibited conduct and compensable injury is governed by the principles of causation, a subject most often arising in elaborating the law of torts. This case requires the Court to define those rules in the context of Title VII, which is central to the federal policy of prohibiting wrongful discrimination in the Nation's workplaces and in all sectors of economic endeavor. . (a) Title VII is a detailed statutory scheme, and it is an unlawful employment practice for an employer to discriminate against any employee on the basis of race, color, religion, sex, or national origin. The two remaining categories of wrongful employer conduct (the employee's opposition to employment discrimination, and the employee's submission of or support for a complaint that alleges employment discrimination) are covered by a separate, subsequent statute, the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S. C. §623. Title VII makes it an unlawful employer to take adverse employment action against an employee because of such individual. Petitioner University of Texas Southwestern Medical Center (Hospital) is an academic institution that specializes in medical education for aspiring physicians, health professionals, and scientists. It has affiliated itself with a number of hospitals, including, as relevant in this case, Parkland Memorial Hospital. As provided in its affiliation agreement with the University, the University permits the University to offer staff physician posts to the University's faculty members, and accordingly most of the staff physician positions at the hospital are filled by faculty members. Respondent, a medical doctor of Middle Eastern descent, was hired to work both as a member of the University faculty and as a staff physician at the Hospital, and, in one of the positions, he was hired as an assistant professor at the University and, once again, as a physician. After exhausting his administrative remedies, respondent filed a Title VII suit in Federal District Court, alleging, inter alia, a status-based discrimination claim under §2000e-2(a). The jury found for respondent on both claims, and awarded him over $400,000 in backpay and more than $3 million in compensatory damages. On appeal, the Court of Appeals affirmed in part and vacated in part, holding that respondent had submitted insufficient evidence in support of his constructive-discharge claim, but that the retaliation finding was based on the theory that such claims required only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause. The court further held that the evidence supported a finding that respondent was motivated, at least partly, to retaliate against respondent for his complaints against Levine. Held: The judgment is vacated and the case is remanded. ;; 688 F. 3d 211, 213-214. Certiorari was granted. Certiorari, granted. Reported below: 568 U. S. ___. (CA5). ;. (b) The text, structure, and history of the Title VII statute demonstrate that a plaintiff making a retaliation claim under the motivating-factor provision must establish that his or her protected activity was a but for cause of the alleged adverse action by the employer. See Gross v. FBL Financial Services, Inc., 557 U. s. 167. P.. (c) The proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-For cause of such action. See Gross, supra, at 176. This fundamental difference in statutory structure renders inapposite decisions that treated retaliation as an implicit corollary of status discrimination. In substance, the motivation-factor section of the statute (§2000e–2(m) applies only to status discrimination, but not to claims of discrimination based on retaliation. There is a significant risk of that consequence if respondent's position were adopted here. Moreover, the facts of this case demonstrate that the legal and factual distinctions between status- based and retaliation claims, as well as the importance of the correct standard of proof, are shown by the proper way of showing the proper treatment of each type of retaliation claim. Even if it were still available, it would be inconsistent with the Gross Court's reading (and the plain textual meaning) of the word, because a different portion of the 1991 Act contains an express reference to all unlawful employment actions, thereby reinforcing the conclusion that Congress acted deliberately when it omitted retaliation claims. Furthermore, the fact that a different part of the Act contains a provision of the ADEA that expressly provides for a jury trial does not preclude a different conclusion, since a different provision of that statute contains express references to unlawful employment. See, e.g., §623(a), 105Stat. 1077, which creates an administrative agency with both rulemaking and enforcement authority, and which authorizes a less

2012_11-1285

https://www.oyez.org/cases/2012/11-1285

. Respondent James McCutchen participated in a health benefits plan that his employer, petitioner US Airways, established under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. §1001 et seq. That plan obliged US Airways to pay any medical ex- penses McCutchen incurred as a result of a third party’s actions—for example, another person’s negligent driving. The plan in turn entitled US Airways to reimbursement if McCutchen later recovered money from the third party. This Court has held that a health-plan administrator like US Airways may enforce such a reimbursement provision by filing suit under §502(a)(3) of ERISA, 88Stat. 891, 29 U. S. C. §1132(a)(3). See Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006). That section authorizes a civil action “to obtain . . . appropriate equitable relief . . . to enforce . . . the terms of the plan.” We here consider whether in that kind of suit, a plan participant like McCutchen may raise certain equitable defenses deriving from principles of unjust enrichment. In particular, we address one equitable doctrine limiting reimbursement to the amount of an insured’s “double recovery” and another requiring the party seeking reimbursement to pay a share of the attorney’s fees incurred in securing funds from the third party. We hold that neither of those equitable rules can override the clear terms of a plan. But we explain that the latter, usually called the common-fund doctrine, plays a role in interpreting US Airways’ plan because the plan is silent about allocating the costs of recovery. I In January 2007, McCutchen suffered serious injuries when another driver lost control of her car and collided with McCutchen’s. At the time, McCutchen was an employee of US Airways and a participant in its self-funded health plan. The plan paid $66,866 in medical expenses arising from the accident on McCutchen’s behalf. McCutchen retained attorneys, in exchange for a 40% contingency fee, to seek recovery of all his accident-related damages, estimated to exceed $1 million. The attorneys sued the driver responsible for the crash, but settled for only $10,000 because she had limited insurance coverage and the accident had killed or seriously injured three other people. Counsel also secured a payment from McCutchen’s own automobile insurer of $100,000, the maximum amount available under his policy. McCutchen thus received $110,000—and after deducting $44,000 for the lawyer’s fee, $66,000. On learning of McCutchen’s recovery, US Airways demanded reimbursement of the $66,866 it had paid in medical expenses. In support of that claim, US Airways relied on the following statement in its summary plan description: “If [US Airways] pays benefits for any claim you incur as the result of negligence, willful misconduct, or other actions of a third party, . . . [y]ou will be required to reimburse [US Airways] for amounts paid for claims out of any monies recovered from [the] third party, including, but not limited to, your own insurance company as the result of judgment, settlement, or otherwise.” App. 20.[1] McCutchen denied that US Airways was entitled to any reimbursement, but his attorneys placed $41,500 in an escrow account pending resolution of the dispute. That amount represented US Airways’ full claim minus a proportionate share of the promised attorney’s fees. US Airways then filed this action under §502(a)(3), seeking “appropriate equitable relief” to enforce the plan’s reimbursement provision. The suit requested an equitable lien on $66,866—the $41,500 in the escrow account and $25,366 more in McCutchen’s possession. McCutchen countered by raising two defenses relevant here. First, he maintained that US Airways could not receive the relief it sought because he had recovered only a small portion of his total damages; absent over-recovery on his part, US Airways’ right to reimbursement did not kick in. Second, he contended that US Airways at least had to contribute its fair share to the costs he incurred to get his recovery; any reimbursement therefore had to be marked down by 40%, to cover the promised contingency fee. The District Court rejected both arguments, granting summary judgment to US Airways on the ground that the plan “clear[ly] and unambiguous[ly]” provided for full reimbursement of the medical expenses paid. App. to Pet. for Cert. 30a; see id., at 32a. The Court of Appeals for the Third Circuit vacated the District Court’s order. The Third Circuit reasoned that in a suit for “appropriate equitable relief” under §502(a)(3), a court must apply any “equitable doctrines and defenses” that traditionally limited the relief requested. 663 F.3d 671, 676 (CA3 2011). And here, the court continued, “ ‘the principle of unjust enrichment’ ” should “ ‘serve to limit the effectiveness’ ” of the plan’s reimbursement provision. See id., at 677 (quoting 4 G. Palmer, Law of Restitution §23.18, p. 472–473 (1978)). Full reimbursement, the Third Circuit thought, would “leav[e] [McCutchen] with less than full payment” for his medical bills; at the same time, it would provide a “windfall” to US Airways given its failure to “contribute to the cost of obtaining the third-party recovery.” 663 F. 3d, at 679. The Third Circuit then instructed the District Court to determine what amount, shy of the entire $66,866, would qualify as “appropriate equitable relief.” Ibid. We granted certiorari, 567 U. S. ___ (2012), to resolve a circuit split on whether equitable defenses can so override an ERISA plan’s reimbursement provision.[2] We now vacate the Third Circuit’s decision. II A health-plan administrator like US Airways may bring suit under §502(a)(3) for “appropriate equitable relief . . . to enforce . . . the terms of the plan.”[3] That provision, we have held, authorizes the kinds of relief “typically available in equity” in the days of “the divided bench,” before law and equity merged. Mertens v. Hewitt Associates, 508 U.S. 248, 256 (1993) (emphasis deleted). In Sereboff v. Mid Atlantic Medical Services, we allowed a health-plan administrator to bring a suit just like this one under §502(a)(3). Mid Atlantic had paid medical expenses for the Sereboffs after they were injured in a car crash. When they settled a tort suit against the other driver, Mid Atlantic claimed a share of the proceeds, invoking the plan’s reimbursement clause. We held that Mid Atlantic’s action sought “equitable relief,” as §502(a)(3) requires. See 547 U. S., at 369. The “nature of the recovery” requested was equitable because Mid Atlantic claimed “specifically identifiable funds” within the Sereboffs’ control—that is, a portion of the settlement they had gotten. Id., at 362–363 (internal quotation marks omitted). And the “basis for [the] claim” was equitable too, because Mid Atlantic relied on “ ‘the familiar rul[e] of equity that a contract to convey a specific object’ ” not yet acquired “ ‘create[s] a lien’ ” on that object as soon as “ ‘the contractor . . . gets a title to the thing.’ ” Id., at 363–364 (quoting Barnes v. Alexander, 232 U.S. 117, 121 (1914)). Mid Atlantic’s claim for reimbursement, we determined, was the modern-day equivalent of an action in equity to enforce such a contract-based lien—called an “equitable lien by agreement.” 547 U. S., at 364–365 (internal quotation marks omitted). Accordingly, Mid Atlantic could bring an action under §502(a)(3) seeking the funds that its beneficiaries had promised to turn over. And here, as all parties agree, US Airways can do the same thing. The question in this case concerns the role that equitable defenses alleging unjust enrichment can play in such a suit. As earlier noted, the Third Circuit held that “the principle of unjust enrichment” overrides US Airways’ reimbursement clause if and when they come into conflict. 663 F. 3d, at 677. McCutchen offers a more refined version of that view, alleging that two specific equitable doctrines meant to “prevent unjust enrichment” defeat the reimbursement provision. Brief for Respondents i. First, he contends that in equity, an insurer in US Airways’ position could recoup no more than an insured’s “double recovery”—the amount the insured has received from a third party to compensate for the same loss the insurance covered. That rule would limit US Airways’ reimbursement to the share of McCutchen’s settlements paying for medical expenses; McCutchen would keep the rest (e.g., damages for loss of future earnings or pain and suffering), even though the plan gives US Airways first claim on the whole third-party recovery. Second, McCutchen claims that in equity the common-fund doctrine would have operated to reduce any award to US Airways. Under that rule, “a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). McCutchen urges that this doctrine, which is designed to prevent freeloading, enables him to pass on a share of his lawyer’s fees to US Airways, no matter what the plan provides.[4] We rejected a similar claim in Sereboff, though without altogether foreclosing McCutchen’s position. The Sereboffs argued, among other things, that the lower courts erred in enforcing Mid Atlantic’s reimbursement clause “without imposing various limitations” that would “apply to truly equitable relief grounded in principles of subrogation.”[5] 547 U. S., at 368 (internal quotation marks omitted). In particular, the Sereboffs contended that a variant of the double-recovery rule, called the make-whole doctrine, trumped the plan’s terms. We rebuffed that argument, explaining that the Sereboffs were improperly mixing and matching rules from different equitable boxes. The Sereboffs asserted a “parcel of equitable defenses” available when an out-of-pocket insurer brought a “freestanding action for equitable subrogation,” not founded on a contract, to succeed to an insured’s judgment against a third party. Ibid. But Mid Atlantic’s reimbursement claim was “considered equitable,” we replied, because it sought to enforce a “ lien based on agreement ”—not a lien imposed independent of contract by virtue of equitable subrogation.[6] Ibid. (internal quotation marks omitted). In light of that fact, we viewed the Sereboffs’ equitable defenses—which again, closely resemble McCutchen’s—as “beside the point.” Ibid. And yet, we left a narrow opening for future litigants in the Sereboffs’ position to make a like claim. In a footnote, we observed that the Sereboffs had forfeited a “distinct assertion” that the contract-based relief Mid Atlantic requested, although “equitable,” was not “appropriate” under §502(a)(3) because “it contravened principles like the make-whole doctrine.” Id., at 368–369 n. 2. Enter McCutchen, to make that basic argument. In the end, however, Sereboff’s logic dooms McCutchen’s effort. US Airways, like Mid Atlantic, is seeking to enforce the modern-day equivalent of an “equitable lien by agreement.” And that kind of lien—as its name announces—both arises from and serves to carry out a contract’s provisions. See id., at 363–364; 4 S. Symons, Pomeroy’s Equity Jurisprudence §1234, p. 695 (5th ed. 1941). So enforcing the lien means holding the parties to their mutual promises. See, e.g., Barnes, 232 U. S., at 121; Walker v. Brown, 165 U.S. 654, 664 (1897). Conversely, it means declining to apply rules—even if they would be “equitable” in a contract’s absence—at odds with the parties’ expressed commitments. McCutchen therefore cannot rely on theories of unjust enrichment to defeat US Airways’ appeal to the plan’s clear terms. Those principles, as we said in Sereboff, are “beside the point” when parties demand what they bargained for in a valid agreement. See Restatement (Third) of Restitution and Unjust Enrichment §2(2), p. 15 (2010) (“A valid contract defines the obligations of the parties as to matters within its scope, displacing to that extent any inquiry into unjust enrichment”). In those circumstances, hewing to the parties’ exchange yields “appropriate” as well as “equitable” relief. We have found nothing to the contrary in the historic practice of equity courts. McCutchen offers us a slew of cases in which those courts applied the double-recovery or common-fund rule to limit insurers’ efforts to recoup funds from their beneficiaries’ tort judgments. See Brief for Respondents 21–25. But his citations are not on point. In some of McCutchen’s cases, courts apparently applied equitable doctrines in the absence of any relevant contract provision. See, e.g., Washtenaw Mut. Fire Ins. Co. v. Budd, 208 Mich. 483, 486–487, 175 N.W. 231, 232 (1919); Fire Assn. of Philadelphia v. Wells, 84 N. J. Eq. 484, 487, 94 A. 619, 621 (1915). In others, courts found those rules to comport with the applicable contract term. For example, in Svea Assurance Co. v. Packham, 92 Md. 464, 48 A. 359 (1901)—the case McCutchen calls his best, see Tr. of Oral Arg. 47–48—the court viewed the double-recovery rule as according with “the intention” of the contracting parties; “[b]road as [the] language is,” the court explained, the agreement “cannot be construed to” give the insurer any greater recovery. 92 Md., at 478, 48 A., at 362; see also Knaffl v. Knoxville Banking & Trust Co., 133 Tenn. 655, 661, 182 S.W. 232, 233 (1916); Camden Fire Ins. Assn. v. Prezioso, 93 N. J. Eq. 318, 319–320, 116 A. 694, 694 (Ch. Div. 1922). But in none of these cases—nor in any other we can find—did an equity court apply the double-recovery or common-fund rule to override a plain contract term. That is, in none did an equity court do what McCutchen asks of us. Nevertheless, the United States, appearing as amicus curiae, claims that the common-fund rule has a special capacity to trump a conflicting contract. The Government begins its brief foursquare with our (and Sereboff’s) analysis: In a suit like this one, to enforce an equitable lien by agreement, “the agreement, not general restitutionary principles of unjust enrichment, provides the measure of relief due.” Brief for United States 6. Because that is so, the Government (naturally enough) concludes, McCutchen cannot invoke the double-recovery rule to defeat the plan. But then the Government takes an unexpected turn. “When it comes to the costs incurred” by a beneficiary to obtain money from a third party, “the terms of the plan do not control.” Id., at 21. An equity court, the Government contends, has “inherent authority” to apportion litigation costs in accord with the “longstanding equitable common-fund doctrine,” even if that conflicts with the parties’ contract. Id., at 22. But if the agreement governs, the agreement governs: The reasons we have given (and the Government mostly ac- cepts) for looking to the contract’s terms do not permit an attorney’s-fees exception. We have no doubt that the common-fund doctrine has deep roots in equity. See Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 164 (1939) (tracing equity courts’ authority over fees to the First Judiciary Act). Those roots, however, are set in the soil of unjust enrichment: To allow “others to obtain full benefit from the plaintiff’s efforts without contributing . . . to the litigation expenses,” we have often noted, “would be to enrich the others unjustly at the plaintiff’s expense.” Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392 (1970); see Boeing, 444 U. S., at 478; Trustees v. Greenough, 105 U.S. 527, 532 (1882); supra, at 6–7 and n. 4. And as we have just explained, principles of unjust enrichment give way when a court enforces an equitable lien by agreement. See supra, at 8–9. The agreement itself becomes the measure of the parties’ equities; so if a contract abrogates the common-fund doctrine, the insurer is not unjustly enriched by claiming the benefit of its bargain. That is why the Government, like McCutchen, fails to produce a single case in which an equity court applied the common-fund rule (any more than the double-recovery rule) when a contract provided to the contrary. Even in equity, when a party sought to enforce a lien by agreement, all provisions of that agreement controlled. So too, then, in a suit like this one. The result we reach, based on the historical analysis our prior cases prescribe, fits lock and key with ERISA’s focus on what a plan provides. The section under which this suit is brought “does not, after all, authorize ‘appropriate equitable relief’ at large,” Mertens, 508 U. S., at 253 (quoting §1132(a)(3)); rather, it countenances only such relief as will enforce “the terms of the plan” or the statute, §1132(a)(3) (emphasis added). That limitation reflects ERISA’s principal function: to “protect contractually defined benefits.” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148 (1985). The statutory scheme, we have often noted, “is built around reliance on the face of written plan documents.” Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 83 (1995). “Every employee benefit plan shall be established and maintained pursuant to a written instrument,” §1102(a)(1), and an administrator must act “in accordance with the documents and instruments governing the plan” insofar as they accord with the statute, §1104(a)(1)(D). The plan, in short, is at the center of ERISA. And precluding McCutchen’s equitable defenses from overriding plain contract terms helps it to remain there. III Yet McCutchen’s arguments are not all for naught. If the equitable rules he describes cannot trump a reimbursement provision, they still might aid in properly construing it. And for US Airways’ plan, the common-fund doctrine (though not the double-recovery rule) serves that function. The plan is silent on the allocation of attorney’s fees, and in those circumstances, the common-fund doctrine provides the appropriate default. In other words, if US Airways wished to depart from the well-established common-fund rule, it had to draft its contract to say so—and here it did not.[7] Ordinary principles of contract interpretation point toward this conclusion. Courts construe ERISA plans, as they do other contracts, by “looking to the terms of the plan” as well as to “other manifestations of the parties’ intent.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989). The words of a plan may speak clearly, but they may also leave gaps. And so a court must often “look outside the plan’s written language” to decide what an agreement means. CIGNA Corp. v. Amara, 563 U. S. ___, ___ (slip op., at 13); see Curtiss-Wright, 514 U. S., at 80–81. In undertaking that task, a court properly takes account of background legal rules—the doctrines that typically or traditionally have governed a given situation when no agreement states otherwise. See Wal-Mart Stores, Inc. Assoc. Health & Welfare Plan v. Wells, 213 F.3d 398, 402 (CA7 2000) (Posner, J.) (“[C]ontracts . . . are enacted against a background of common-sense understandings and legal principles that the parties may not have bothered to incorporate expressly but that operate as default rules to govern in the absence of a clear expression of the parties’ [contrary] intent”); 11 R. Lord, Williston on Contracts §31:7 (4th ed. 2012); Restatement (Second) of Contracts §221 (1979). Indeed, ignoring those rules is likely to frustrate the parties’ intent and produce perverse consequences. The reimbursement provision at issue here precludes looking to the double-recovery rule in this manner. Both the contract term and the equitable principle address the same problem: how to apportion, as between an insurer and a beneficiary, a third party’s payment to recompense an injury. But the allocation formulas they prescribe differ markedly. According to the plan, US Airways has first claim on the entire recovery—as the plan description states, on “any monies recovered from [the] third party”; McCutchen receives only whatever is left over (if anything). See supra, at 3. By contrast, the double-recovery rule would give McCutchen first dibs on the portion of the recovery compensating for losses that the plan did not cover (e.g., future earnings or pain and suffering); US Airways’ claim would attach only to the share of the recovery for medical expenses. See supra, at 6–7. The express contract term, in short, contradicts the background equitable rule; and where that is so, for all the reasons we have given, the agreement must govern. By contrast, the plan provision here leaves space for the common-fund rule to operate. That equitable doctrine, as earlier noted, addresses not how to allocate a third-party recovery, but instead how to pay for the costs of obtaining it. See supra, at 7. And the contract, for its part, says nothing specific about that issue. The District Court below thus erred when it found that the plan clearly repudiated the common-fund rule. See supra, at 4. To be sure, the plan’s allocation formula—first claim on the recovery goes to US Airways—might operate on every dollar received from a third party, even those covering the beneficiary’s litigation costs. But alternatively, that formula could apply to only the true recovery, after the costs of obtaining it are deducted. (Consider, for comparative purposes, how an income tax is levied on net, not gross, receipts.) See Dawson, Lawyers and Involuntary Clients: Attorney Fees From Funds, 87 Harv. L. Rev. 1597, 1606–1607 (1974) (“[T]he claim for legal services is a first charge on the fund and must be satisfied before any distribution occurs”). The plan’s terms fail to select between these two alternatives: whether the recovery to which US Airways has first claim is every cent the third party paid or, instead, the money the beneficiary took away. Given that contractual gap, the common-fund doctrine provides the best indication of the parties’ intent. No one can doubt that the common-fund rule would govern here in the absence of a contrary agreement. This Court has “recognized consistently” that someone “who recovers a common fund for the benefit of persons other than himself” is due “a reasonable attorney’s fee from the fund as whole.” Boeing Co., 444 U. S., at 478. We have understood that rule as “reflect[ing] the traditional practice in courts of equity.” Ibid.; see Sprague, 307 U. S., at 164–166; supra, at 11. And we have applied it in a wide range of circumstances as part of our inherent authority. See Boeing Co., 444 U. S., at 474, 478; Hall v. Cole, 412 U.S. 1, 6–7 and n. 7 (1973); Mills, 396 U. S., at 389–390, 392; Sprague, 307 U. S., at 166; Central Railroad & Banking Co. of Ga. v. Pettus, 113 U.S. 116, 126–127 (1885); Greenough, 105 U. S., at 528, 531–533. State courts have done the same; the “overwhelming majority” routinely use the common-fund rule to allocate the costs of third-party recoveries between insurers and beneficiaries. 8A Appleman §4903.85, at 335 (1981); see Annot., 2 A. L. R. 3d 1441, §§2–3 (1965 and Supp. 2012). A party would not typically expect or intend a plan saying nothing about attorney’s fees to abrogate so strong and uniform a background rule. And that means a court should be loath to read such a plan in that way.[8] The rationale for the common-fund rule reinforces that conclusion. Third-party recoveries do not often come free: To get one, an insured must incur lawyer’s fees and expenses. Without cost sharing, the insurer free rides on its beneficiary’s efforts—taking the fruits while contributing nothing to the labor. Odder still, in some cases—indeed, in this case—the beneficiary is made worse off by pursuing a third party. Recall that McCutchen spent $44,000 (representing a 40% contingency fee) to get $110,000, leaving him with a real recovery of $66,000. But US Airways claimed $66,866 in medical expenses. That would put McCutchen $866 in the hole; in effect, he would pay for the privilege of serving as US Airways’ collection agent. We think McCutchen would not have foreseen that result when he signed on to the plan. And we doubt if even US Airways should want it. When the next McCutchen comes along, he is not likely to relieve US Airways of the costs of recovery. See Blackburn v. Sundstrand Corp., 115 F.3d 493, 496 (CA7 1997) (Easterbrook, J.) (“[I]f . . . injured persons could not charge legal costs against recoveries, people like [McCutchen] would in the future have every reason” to make different judgments about bringing suit, “throwing on plans the burden and expense of collection”). The prospect of generating those strange results again militates against reading a general reimbursement provision—like the one here—for more than it is worth. Only if US Airways’ plan expressly addressed the costs of recovery would it alter the common-fund doctrine. IV Our holding today has two parts, one favoring US Airways, the other McCutchen. First, in an action brought under §502(a)(3) based on an equitable lien by agreement, the terms of the ERISA plan govern. Neither general principles of unjust enrichment nor specific doctrines reflecting those principles—such as the double-recovery or common-fund rules—can override the applicable contract. We therefore reject the Third Circuit’s decision. But second, the common-fund rule informs interpretation of US Airways’ reimbursement provision. Because that term does not advert to the costs of recovery, it is properly read to retain the common-fund doctrine. We therefore also disagree with the District Court’s decision. In light of these rulings, we vacate the judgment below and re- mand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 We have made clear that the statements in a summary plan description “communicat[e] with beneficiaries about the plan, but . . . donot themselves constitute the terms of the plan.” CIGNA Corp. v. Amara, 563 U. S. ___, ___ (2011) (slip op., at 15). Nonetheless, the parties litigated this case, and both lower courts decided it, based solely on the language quoted above. See 663 F.3d 671, 673 (CA3 2011); App. to Pet. for Cert. 26a. Only in this Court, in response to a request from the Solicitor General, did the plan itself come to light. See Letter from Matthew W. H. Wessler to William K. Suter, Clerk of Court (Nov. 19, 2012) (available in Clerk of Court’s case file). That is too late to affect what happens here: Because everyone in this case has treated the language from the summary description as though it came from the plan, we do so as well. 2 Compare 663 F.3d 671, 673 (CA3 2011) (case below) (holding that equitable doctrines can trump a plan’s terms); CGI Technologies & Solutions Inc. v. Rose, 683 F.3d 1113, 1124 (CA9 2012) (same), with Zurich Am. Ins. Co. v. O’Hara, 604 F.3d 1232, 1237 (CA11 2010) (holding that they cannot do so); Administrative Comm. of Wal-Mart Stores, Inc. v. Shank, 500 F.3d 834, 838 (CA8 2007) (same); Moore v. CapitalCare, Inc., 461 F.3d 1, 9–10 and n. 10 (CADC 2006) (same); Bombadier Aerospace Employee Welfare Benefits Plan v. Ferror, Poirot, & Wansbrough, 354 F.3d 348, 362 (CA5 2003) (same); Administrative Comm. of Wal-Mart Stores, Inc. v. Varco, 338 F.3d 680, 692 (CA7 2003) (same). 3 Sans ellipses, §502(a)(3) provides that a plan administrator may bring a civil action “(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U. S. C. §1132(a)(3). 4 Both our prior cases and secondary sources confirm McCutchen’s characterization of the common-fund and double-recovery rules as deriving primarily from principles of unjust enrichment. See Boeing, 444 U. S., at 478 (“The [common-fund] doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched”); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392 (1970) (similar); 1 D. Dobbs, Law of Remedies §3.10(2), p. 395 (2d ed. 1993) (hereinafter Dobbs) (similar); 4 G. Palmer, Law of Restitution §23.16(b), p. 444 (“[T]he injured person is unjustly enriched” only when he has received “in excess of full compensation” from two sources “for the same loss”); 16 G. Couch, Cyclopedia of Insurance Law §61:18 (2d ed. 1983) (similar); 8B J. Appleman & J. Appleman, Insurance Law and Practice §4941, p. 11 (Cum. Supp. 2012) (hereinafter Appleman) (similar). 5 “Subrogation simply means substitution of one person for another; that is, one person is allowed to stand in the shoes of another and assert that person’s rights against” a third party. 1 Dobbs §4.3(4), at 604; see 8B Appleman §4941, at 11 (“ ‘Subrogation’ involves the substitution of the insurer . . . to the rights of the insured”). 6 The Sereboff Court’s analysis concerned only subrogation actions based on equitable principles independent of any agreement. A subrogation action may also be founded on a contract incorporating those principles. See 1 Dobbs §4.3(4), at 604. US Airways suggested at oral argument that McCutchen’s case would “ge[t] a lot stronger” if the plan here spoke only of subrogation, without separately granting a right of reimbursement. Tr. of Oral Arg. 18. We need not consider that question because US Airways seeks to enforce a reimbursement provision, of the same kind we considered in Sereboff. 7 The dissent faults us for addressing this issue, but we think it adequately preserved and presented. The language the dissent highlights in McCutchen’s brief in opposition, indicating that the plan clearly abrogates the common-fund doctrine, comes from his description of US Airways’ claim in the District Court. See post, at 1 (opinion of Scalia, J.); Brief in Opposition 5. McCutchen’s argument in that court urged the very position we adopt—that the common-fund doctrine applies because the plan is silent. See App. to Pet. for Cert. 30a; Defendants’ Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment in No. 2:08–cv–1593 (WD Pa., Dec. 4, 2011), Doc. 33, pp. 12–13 (“If [US Airways] wanted to exclude a deduction for attorney fees, it easily could have so expressed”). To be sure, McCutchen shifted ground on appeal because the District Court ruled that Third Circuit precedent foreclosed his contract-based argument, see App. to Pet. for Cert. 31a; the Court of Appeals’ decision then put front-and-center his alternative contention that the common-fund rule trumps a contract. But both claims have the same basis (the nature and function of the common-fund doctrine), which the parties have disputed throughout this litigation. And similarly, the question we decide here is included in the question presented. The principal clause of that question asks whether a court may use “equitable principles to rewrite contractual language.” Pet. for Cert. i. We answer “not rewrite, but inform”—a reply well within the question’s scope. 8 For that reason, almost every state court that has confronted the issue has done what we do here: apply the common-fund doctrine inthe face of a contract giving an insurer a general right to recoup funds from an insured’s third-party recovery, without specifically addressing attorney’s fees. See, e.g., Ex parte State Farm Mut. Auto. Ins. Co., 105 So. 3d 1199, 1212 and n. 6 (Ala. 2012); York Ins. Group of Me. v. Van Hall, 1997 ME 230, ¶8, 704 A.2d 366, 369; Barreca v. Cobb, 95–1651, pp. 2–3, 5 and n. 5 (La. 2/28/96), 668 So. 2d 1129, 1131–1132 and n. 5; Federal Kemper Ins. Co. v. Arnold, 183 W. Va. 31, 33–34, 393 S.E.2d 669, 671–672 (1990); State Farm Mut. Auto. Ins. Co. v. Clinton, 267 Ore. 653, 661–662, 518 P.2d 645, 649 (1974); Northern Buckeye Educ. Council Group Health Benefits Plan v. Lawson, 154 Ohio App. 3d 659, 669, 2003–Ohio–5196, 798 N.E.2d 667, 675; Lancer Corp. v. Murillo, 909 S.W.2d 122, 126–127 and n. 2 (Tex. App. 1995); Breslin v. Liberty Mut. Ins. Co., 134 N. J. Super. 357, 362, 341 A.2d 342, 344 (App. Div. 1975); Hospital Service Corp. of R. I. v. Pennsylvania Ins. Co., 101 R. I. 708, 710, 716, 227 A.2d 105, 108, 111 (1967); National Union Fire Ins. Co. v. Grimes, 278 Minn. 45, 46–47, 51, 153 N.W.2d 152, 153, 156 (1967); Foremost Life Ins. Co. v. Waters, 125 Mich. App. 799, 801, 805, 337 N.W.2d 29, 30, 32 (1983) (citing Foremost Life Ins. Co. v. Waters, 88 Mich. App. 599, 602, 278 N.W.2d 688, 689 (1979)); Lee v. State Farm Mut. Auto. Ins. Co., 57 Cal. App. 3d 458, 462, 469, 129 Cal. Rptr. 271, 273–274, 278 (1976).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus US AIRWAYS, INC., in its capacity as fiduciary and plan administrator of the US AIRWAYS, INC. EMPLOYEE BENEFITS PLAN v. McCUTCHEN et al. certiorari to the united states court of appeals for the third circuit No. 11–1285. Argued November 27, 2012—Decided April 16, 2013 The health benefits plan established by petitioner US Airways paid $66,866 in medical expenses for injuries suffered by respondent McCutchen, a US Airways employee, in a car accident caused by a third party. The plan entitled US Airways to reimbursement if McCutchen later recovered money from the third party. McCutchen’s attorneys secured $110,000 in payments, and McCutchen received $66,000 after deducting the lawyers’ 40% contingency fee. US Airways demanded reimbursement of the full $66,866 it had paid. When McCutchen did not comply, US Airways filed suit under §502(a)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), which authorizes health-plan administrators to bring a civil action “to obtain . . . appropriate equitable relief . . . to enforce . . . the terms of the plan.” McCutchen raised two defenses to US Airways’ request for an equitable lien on the $66,866 it demanded: that, absent over-recovery on his part, US Airways’ right to reimbursement did not kick in; and that US Airways had to contribute its fair share to the costs he incurred to get his recovery, so any reimbursement had to be reduced by 40%, to cover the contingency fee. Rejecting both arguments, the District Court granted summary judgment to US Airways. The Third Circuit vacated. Reasoning that traditional “equitable doctrines and defenses” applied to §502(a)(3) suits, it held that the principle of unjust enrichment overrode US Airways’ reimbursement clause because the clause would leave McCutchen with less than full payment for his medical bills and would give US Airways a windfall. Held: 1. In a §502(a)(3) action based on an equitable lien by agreement—like this one—the ERISA plan’s terms govern. Neither general unjust enrichment principles nor specific doctrines reflecting those principles—such as the double-recovery or common-fund rules invoked by McCutchen—can override the applicable contract. . (a) Section 502(a)(3) authorizes the kinds of relief “typically available in equity” before the merger of law and equity. Mertens v. Hewitt Associates, 508 U.S. 248, 256. In Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356, the Court permitted a health-plan administrator to bring a suit just like this one. The administrator’s claim to enforce its reimbursement clause, the Court explained, was the modern-day equivalent of an action in equity to enforce a contract-based lien—called an “equitable lien ‘by agreement.’ ” Id., at 364–365. Accordingly, the administrator could use §502(a)(3) to obtain funds that its beneficiaries had promised to turn over. The parties agree that US Airways can do the same here. . (b) Sereboff’s logic dooms McCutchen’s argument that two equitable doctrines meant to prevent unjust enrichment—the double-recovery rule and common-fund doctrine—can override the terms of an ERISA plan in such a suit. As in Sereboff, US Airways is seeking to enforce the modern-day equivalent of an equitable lien by agreement. Such a lien both arises from and serves to carry out a contract’s provisions. See 547 U. S., at 363–364. Thus, enforcing the lien means holding the parties to their mutual promises and declining to apply rules—even if they would be “equitable” absent a contract—at odds with the parties’ expressed commitments. The Court has found nothing to the contrary in the historic practice of equity courts. McCutchen identifies a slew of cases in which courts applied the equitable doctrines invoked here, but none in which they did so to override a clear contract that provided otherwise. This result comports with ERISA’s focus on what a plan provides: §502(a)(3) does not “authorize ‘appropriate equitable relief’ at large,” Mertens, 508 U. S., at 253, but countenances only such relief as will enforce “the terms of the plan” or the statute. . 2. While McCutchen’s equitable rules cannot trump a reimbursement provision, they may aid in properly construing it. US Airways’ plan is silent on the allocation of attorney’s fees, and the common-fund doctrine provides the appropriate default rule to fill that gap. . (a) Ordinary contract interpretation principles support this conclusion. Courts construe ERISA plans, as they do other contracts, by “looking to the terms of the plan” as well as to “other manifestations of the parties’ intent.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113. Where the terms of a plan leave gaps, courts must “look outside the plan’s written language” to decide the agreement’s meaning, CIGNA Corp. v. Amara, 563 U. S. ___, ___, and they properly take account of the doctrines that typically or traditionally have governed a given situation when no agreement states otherwise. . (b) US Airways’ reimbursement provision precludes looking to the double-recovery rule in this manner because it provides an allocation formula that expressly contradicts the equitable rule. By contrast, the plan says nothing specific about how to pay for the costs of recovery. Given that contractual gap, the common-fund doctrine provides the best indication of the parties’ intent. This Court’s cases make clear that the doctrine would govern here in the absence of a contrary agreement. See, e.g., Boeing Co. v. Van Gemert, 444 U.S. 472, 478. Because a party would not typically expect or intend a plan saying nothing about attorney’s fees to abrogate so strong and uniform a background rule, a court should be loath to read the plan in that way. The common-fund rule’s rationale reinforces this conclusion: Without the rule, the insurer can free ride on the beneficiary’s efforts, and the beneficiary, as in this case, may be made worse off for having pursued a third party. A contract should not be read to produce these strange results unless it specifically provides as much. . 663 F.3d 671, vacated and remanded. Kagan, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.

Respondent McCutchen participated in a health benefits plan that his employer established under the Employee Retirement Income Security Act of 1974 (ERISA). The plan obliged US Airways to pay any medical ex- penses McCutche incurred as a result of a third party's actions, such as another person's negligent driving. The plan in turn entitled the plan to reimbursement if he later recovered money from the third party. Respondent then filed suit under §502(a)(3) of ERISA, seeking, inter alia, equitable relief to enforce the plan's reimbursement provision. The suit was requested by US Airways, which countered by raising two defenses. First, it maintained that he could not receive a fair share of the reimbursement because he had recovered only a small portion of the amount he had incurred. Second, it rejected the District Court on the ground that it had marked down the reimbursement fee. The Court of Appeals vacated the order, reasoning that a suit in a suit for equitable relief in a court such as this must apply any equitable doctrines and defenses traditionally limited the relief requested. Held: The judgment is vacated, and the case is remanded. ;;. 63 F.3d 671 (CA3), vacated and remanded for further proceedings. (a) A health-plan administrator such as US Airways may bring suit in an equity court for such "appropriate equitable relief... to enforce" the terms of the plan. See Sereboff v. Mid Atlantic Medical Services, Inc., 563 U. S. ___, ___. Although the plan is silent on the allocation of attorney's fees, the common-fund doctrine provides the best indication of the parties' intent that someone recovering a common fund for the benefit of persons other than himself be entitled to a reasonable attorney's fee from the fund as whole. See, e.g., Boeing Co. v. Van Gemert, 444 U.S. 73, 256. . (b) To enforce an equitable lien by agreement, the agreement, not general restitutionary principles of unjust enrichment, provides the measure of relief due. Thus, enforcing the lien means holding the parties to their mutual promises. Conversely, it means declining to apply rules, even if they would be equitable in a contract's absence, at odds with the parties. See id., at 364-365 (internal quotation marks omitted). See id. at 368. P.. (c) Even if the equitable rules described in the summary plan description cannot trump a reimbursement provision, they still might aid in properly construing it, since, in the absence of a contrary agreement, almost every state court that has confronted the issue has done what this Court does here: apply the common fund doctrine inthe face of a contract giving an insurer a general right to recoup funds from an insured's third-party recovery, without specifically addressing attorney’s fees. And since a court should be loath to read such a plan in that way, it may use equitable principles to rewrite contractual language. Here, however, both prior cases and secondary sources confirm that the common funds doctrine deriving primarily from unjust enrichment can play the role of equitable defenses alleging unjust enrichment in such a suit. First, in an action brought in an ERISA case based on an equitable lien-by-fees contract, the ERISA plan terms govern. Neither general principles of unjust enrichment nor specific doctrines reflecting those principles can override the applicable contract terms. Second, the Common-fund rule informs interpretation of US Airways' reimbursement provision because that term does not advert to the costs of recovery, but is properly read to retain that doctrine. This Court need not consider that question because US Airways seeks to enforce a reimbursement provision, of the same kind, of which US Airways sought to enforce. Moreover, since both the parties litigated this case, and both lower courts decided it based solely on the language quoted above, it is too late to affect what happens here: Because everyone in this case has treated the language from the summary description as though it came from the plan, and since everyone has treated it, as it should have, as well.. 63 D. C. 671, vacated and re-mandated. 662 F. 3d 673, vacated in part and reemphasized in part. EVENS, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and in Parts I, II, III, and IV of which STEVENS and SCALIA, joined. STEVEN, J., filed an opinion concurring in the judgment, post, p..

2012_11-556

https://www.oyez.org/cases/2012/11-556

. In this case, we decide a question left open in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998) , and Far- agher v. Boca Raton, 524 U. S. 775 (1998) , namely, who qualifies as a “supervisor” in a case in which an employee asserts a Title VII claim for workplace harassment? Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “super- visor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Id., at 807; Ellerth, supra, at 765. Under this framework, therefore, it matters whether a harasser is a “supervisor” or simply a co-worker. We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim, and we therefore affirm the judgment of the Seventh Circuit. I Maetta Vance, an African-American woman, began working for Ball State University (BSU) in 1989 as a sub- stitute server in the University Banquet and Catering division of Dining Services. In 1991, BSU promoted Vance to a part-time catering assistant position, and in 2007 she applied and was selected for a position as a full-time catering assistant. Over the course of her employment with BSU, Vance lodged numerous complaints of racial discrimination and retaliation, but most of those incidents are not at issue here. For present purposes, the only relevant incidents concern Vance’s interactions with a fellow BSU employee, Saundra Davis. During the time in question, Davis, a white woman, was employed as a catering specialist in the Banquet and Catering division. The parties vigorously dispute the precise nature and scope of Davis’ duties, but they agree that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. See No. 1:06–cv–1452–SEB–JMS, 2008 WL 4247836, *12 (SD Ind., Sept. 10, 2008) (“Vance makes no allegations that Ms. Davis possessed any such power”); Brief for Petitioner 9–11 (describing Davis’ authority over Vance); Brief for Respondent 39 (“[A]ll agree that Davis lacked the author- ity to take tangible employments [sic] actions against petitioner”). In late 2005 and early 2006, Vance filed internal complaints with BSU and charges with the Equal Employment Opportunity Commission (EEOC), alleging racial harassment and discrimination, and many of these complaints and charges pertained to Davis. 646 F. 3d 461, 467 (CA7 2011). Vance complained that Davis “gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her.” Ibid. She alleged that she was “left alone in the kitchen with Davis, who smiled at her”; that Davis “blocked” her on an elevator and “stood there with her cart smiling”; and that Davis often gave her “weird” looks. Ibid. (internal quotation marks omitted). Vance’s workplace strife persisted despite BSU’s attempts to address the problem. As a result, Vance filed this lawsuit in 2006 in the United States District Court for the Southern District of Indiana, claiming, among other things, that she had been subjected to a racially hostile work environment in violation of Title VII. In her complaint, she alleged that Davis was her supervisor and that BSU was liable for Davis’ creation of a racially hostile work environment. Complaint in No. 1:06–cv–01452–SEB–TAB (SD Ind., Oct. 3, 2006), Dkt. No. 1, pp. 5–6. Both parties moved for summary judgment, and the District Court entered summary judgment in favor of BSU. 2008 WL 4247836, at *1. The court explained that BSU could not be held vicariously liable for Davis’ alleged racial harassment because Davis could not “ ‘hire, fire, demote, promote, transfer, or discipline’ ” Vance and, as a result, was not Vance’s supervisor under the Seventh Circuit’s interpretation of that concept. See id., at *12 (quoting Hall v. Bodine Elect. Co., 276 F. 3d 345, 355 (CA7 2002)). The court further held that BSU could not be liable in negligence because it responded reasonably to the incidents of which it was aware. 2008 WL 4247836, *15. The Seventh Circuit affirmed. 646 F. 3d 461. It explained that, under its settled precedent, supervisor status requires “ ‘the power to hire, fire, demote, promote, transfer, or discipline an employee.’ ” Id., at 470 (quoting Hall, supra, at 355). The court concluded that Davis was not Vance’s supervisor and thus that Vance could not recover from BSU unless she could prove negligence. Finding that BSU was not negligent with respect to Davis’ conduct, the court affirmed. 646 F. 3d, at 470–473. II A Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). This provision obviously prohibits discrimination with respect to employment decisions that have direct economic consequences, such as termination, demotion, and pay cuts. But not long after Title VII was enacted, the lower courts held that Title VII also reaches the creation or perpetuation of a discriminatory work environment. In the leading case of Rogers v. EEOC, 454 F. 2d 234 (1971), the Fifth Circuit recognized a cause of action based on this theory. See Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 –66 (1986) (describing development of hostile environment claims based on race). The Rogers court reasoned that “the phrase ‘terms, conditions, or privileges of employment’ in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.” 454 F. 2d, at 238. The court observed that “[o]ne can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psy- chological stability of minority group workers.” Ibid. Following this decision, the lower courts generally held that an employer was liable for a racially hostile work environ- ment if the employer was negligent, i.e., if the employer knew or reasonably should have known about the harassment but failed to take remedial action. See Ellerth, 524 U. S., at 768–769 (Thomas, J., dissenting) (citing cases). When the issue eventually reached this Court, we agreed that Title VII prohibits the creation of a hostile work environment. See Meritor, supra, at 64–67. In such cases, we have held, the plaintiff must show that the work environment was so pervaded by discrimination that the terms and conditions of employment were altered. See, e.g., Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993) . B Consistent with Rogers, we have held that an employer is directly liable for an employee’s unlawful harassment if the employer was negligent with respect to the offensive behavior. Faragher, 524 U. S., at 789. Courts have generally applied this rule to evaluate employer liability when a co-worker harasses the plaintiff. [ 1 ] In Ellerth and Faragher, however, we held that different rules apply where the harassing employee is the plain- tiff’s “supervisor.” In those instances, an employer may be vicariously liable for its employees’ creation of a hostile work environment. And in identifying the situations in which such vicarious liability is appropriate, we looked to the Restatement of Agency for guidance. See, e.g., Meri- tor, supra, at 72; Ellerth, supra, at 755. Under the Restatement, “masters” are generally not liable for the torts of their “servants” when the torts are committed outside the scope of the servants’ employment. See 1 Restatement (Second) of Agency §219(2), p. 481 (1957) (Restatement). And because racial and sexual harassment are unlikely to fall within the scope of a servant’s duties, application of this rule would generally preclude employer liability for employee harassment. See Faragher, supra, at 793–796; Ellerth, supra, at 757. But in Ellerth and Faragher, we held that a provision of the Restatement provided the basis for an exception. Section 219(2)(d) of that Restatement recognizes an exception to the general rule just noted for situations in which the servant was “aided in accomplishing the tort by the existence of the agency relation.” [ 2 ] Restatement 481; see Far- agher, supra, at 802–803; Ellerth, supra, at 760–763. Adapting this concept to the Title VII context, Ellerth and Faragher identified two situations in which the aided-in-the-accomplishment rule warrants employer liability even in the absence of negligence, and both of these situations involve harassment by a “supervisor” as opposed to a co-worker. First, the Court held that an employer is vicariously liable “when a supervisor takes a tangible employment action,” Ellerth, supra, at 762; Faragher, supra, at 790—i.e., “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U. S., at 761. We explained the reason for this rule as follows: “When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation. . . . A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors.” Id., at 761–762. In those circumstances, we said, it is appropriate to hold the employer strictly liable. See Faragher, supra, at 807; Ellerth, supra, at 765. Second, Ellerth and Faragher held that, even when a supervisor’s harassment does not culminate in a tangible employment action, the employer can be vicariously liable for the supervisor’s creation of a hostile work environment if the employer is unable to establish an affirmative defense. [ 3 ] We began by noting that “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation.” El- lerth, supra, at 763; see Faragher, 524 U. S., at 803–805. But it would go too far, we found, to make employers strictly liable whenever a “supervisor” engages in harassment that does not result in a tangible employment action, and we therefore held that in such cases the employer may raise an affirmative defense. Specifically, an employer can mitigate or avoid liability by showing (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided. Faragher, supra, at 807; Ellerth, 524 U. S., at 765. This compromise, we ex- plained, “accommodate[s] the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees.” Id., at 764. The dissenting Members of the Court in Ellerth and Faragher would not have created a special rule for cases involving harassment by “supervisors.” Instead, they would have held that an employer is liable for any employee’s creation of a hostile work environment “if, and only if, the plaintiff proves that the employer was negligent in permitting the [offending] conduct to occur.” Ellerth, supra, at 767 (Thomas, J., dissenting); Faragher, supra, at 810 (same). C Under Ellerth and Faragher, it is obviously important whether an alleged harasser is a “supervisor” or merely a co-worker, and the lower courts have disagreed about the meaning of the concept of a supervisor in this context. Some courts, including the Seventh Circuit below, have held that an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim. E.g., 646 F. 3d, at 470; Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Weyers v. Lear Operations Corp., 359 F. 3d 1049, 1057 (CA8 2004). Other courts have substantially followed the more open-ended approach advocated by the EEOC’s Enforcement Guidance, which ties supervisor status to the ability to exercise significant direction over another’s daily work. See, e.g., Mack v. Otis Elevator Co., 326 F. 3d 116, 126–127 (CA2 2003); Whitten v. Fred’s, Inc., 601 F. 3d 231, 245–247 (CA4 2010); EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999), 1999 WL 33305874, *3 (hereinafter EEOC Guidance). We granted certiorari to resolve this conflict. 567 U. S. ___ (2012). III We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “sig- nificant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, supra, at 761. We reject the nebulous definition of a “supervisor” advocated in the EEOC Guidance [ 4 ] and substantially adopted by several courts of appeals. Petitioner’s reliance on colloquial uses of the term “supervisor” is misplaced, and her contention that our cases require the EEOC’s abstract definition is simply wrong. As we will explain, the framework set out in Ellerth and Faragher presupposes a clear distinction between supervisors and co-workers. Those decisions contemplate a unitary category of supervisors, i.e., those employees with the authority to make tangible employment decisions. There is no hint in either decision that the Court had in mind two categories of supervisors: first, those who have such authority and, second, those who, although lacking this power, nevertheless have the ability to direct a co-worker’s labor to some ill-defined degree. On the contrary, the Ellerth/Faragher framework is one under which supervisory status can usually be readily determined, generally by written documentation. The approach recommended by the EEOC Guidance, by contrast, would make the determination of supervisor status depend on a highly case-specific evaluation of numerous factors. The Ellerth/Faragher framework represents what the Court saw as a workable compromise between the aided-in-the-accomplishment theory of vicarious liability and the legitimate interests of employers. The Seventh Circuit’s understanding of the concept of a “supervisor,” with which we agree, is easily workable; it can be applied without undue difficulty at both the summary judgment stage and at trial. The alternative, in many cases, would frustrate judges and confound jurors. A Petitioner contends that her expansive understanding of the concept of a “supervisor” is supported by the meaning of the word in general usage and in other legal contexts, see Brief for Petitioner 25–28, but this argument is both incorrect on its own terms and, in any event, misguided. In general usage, the term “supervisor” lacks a sufficiently specific meaning to be helpful for present purposes. Petitioner is certainly right that the term is often used to refer to a person who has the authority to direct another’s work. See, e.g., 17 Oxford English Dictionary 245 (2d ed. 1989) (defining the term as applying to “one who inspects and directs the work of others”). But the term is also often closely tied to the authority to take what Ellerth and Faragher referred to as a “tangible employment action.” See, e.g., Webster’s Third New International Dictionary 2296, def. 1(a) (1976) (“a person having authority dele- gated by an employer to hire, transfer, suspend, recall, promote, assign, or discharge another employee or to rec- ommend such action”). A comparison of the definitions provided by two colloquial business authorities illustrates the term’s imprecision in general usage. One says that “[s]upervisors are usually authorized to recommend and/or effect hiring, disciplining, promoting, punishing, rewarding, and other associated activities regarding the employees in their departments.” [ 5 ] Another says exactly the opposite: “A supervisor generally does not have the power to hire or fire employees or to promote them.” [ 6 ] Compare Ellerth, 524 U. S., at 762 (“Tangible employment actions fall within the special province of the supervisor”). If we look beyond general usage to the meaning of the term in other legal contexts, we find much the same situation. Sometimes the term is reserved for those in the upper echelons of the management hierarchy. See, e.g., 25 U. S. C. §2021(18) (defining the “supervisor” of a school within the jurisdiction of the Bureau of Indian Affairs as “the individual in the position of ultimate authority at a Bureau school”). But sometimes the term is used to refer to lower ranking individuals. See, e.g., 29 U. S. C. §152(11) (defining a supervisor to include “any individual having authority . . . to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment”); 42 U. S. C. §1396n(j)(4)(A) (providing that an eligible Medicaid beneficiary who receives care through an approved self-directed services plan may “hire, fire, supervise, and manage the individuals providing such services”). Although the meaning of the concept of a supervisor varies from one legal context to another, the law often contemplates that the ability to supervise includes the ability to take tangible employment actions. [ 7 ] See, e.g., 5 CFR §§9701.511(a)(2), (3) (2012) (referring to a supervisor’s authority to “hire, assign, and direct employees . . . and [t]o lay off and retain employees, or to suspend, re- move, reduce in grade, band, or pay, or take other disciplinary action against such employees or, with respect to filling positions, to make selections for appointments from properly ranked and certified candidates for promotion or from any other appropriate source”); §9701.212(b)(4) (defining “supervisory work” as that which “may involve hiring or selecting employees, assigning work, managing performance, recognizing and rewarding employees, and other associated duties”). In sum, the term “supervisor” has varying meanings both in colloquial usage and in the law. And for this reason, petitioner’s argument, taken on its own terms, is unsuccessful. More important, petitioner is misguided in suggesting that we should approach the question presented here as if “supervisor” were a statutory term. “Supervisor” is not a term used by Congress in Title VII. Rather, the term was adopted by this Court in Ellerth and Faragher as a label for the class of employees whose misconduct may give rise to vicarious employer liability. Accordingly, the way to understand the meaning of the term “supervisor” for present purposes is to consider the interpretation that best fits within the highly structured framework that those cases adopted. B In considering Ellerth and Faragher, we are met at the outset with petitioner’s contention that at least some of the alleged harassers in those cases, whom we treated as supervisors, lacked the authority that the Seventh Circuit’s definition demands. This argument misreads our decisions. In Ellerth, it was clear that the alleged harasser was a supervisor under any definition of the term: He hired his victim, and he promoted her (subject only to the minis- terial approval of his supervisor, who merely signed the paperwork). 524 U. S., at 747. Ellerth was a case from the Seventh Circuit, and at the time of its decision in that case, that court had already adopted its current definition of a supervisor. See Volk v. Coler, 845 F. 2d 1422, 1436 (1988). See also Parkins v. Civil Constructors of Ill., Inc., 163 F. 3d 1027, 1033, n. 1 (CA7 1998) (discussing Circuit case law). Although the en banc Seventh Circuit in Ellerth issued eight separate opinions, there was no disagreement about the harasser’s status as a supervisor. Jansen v. Packaging Corp. of America, 123 F. 3d 490 (1997) (per curiam). Likewise, when the case reached this Court, no question about the harasser’s status was raised. The same is true with respect to Faragher. In that case, Faragher, a female lifeguard, sued her employer, the city of Boca Raton, for sexual harassment based on the conduct of two other lifeguards, Bill Terry and David Silverman, and we held that the city was vicariously liable for Terry’s and Silverman’s harassment. Although it is clear that Terry had authority to take tangible employment actions affecting the victim, [ 8 ] see 524 U. S., at 781 (explaining that Terry could hire new lifeguards, supervise their work assignments, counsel, and discipline them), Silverman may have wielded less authority, ibid. (noting that Silverman was “responsible for making the lifeguards’ daily assignments, and for supervising their work and fitness training”). Nevertheless, the city never disputed Far- agher’s characterization of both men as her “supervisors.” See App., O. T. 1997, No. 97–282, p. 40 (First Amended Complaint ¶¶6–7); id., at 79 (Answer to First Amended Complaint ¶¶6–7) (admitting that both harassers had “supervisory responsibilities” over the plaintiff). [ 9 ] In light of the parties’ undisputed characterization of the alleged harassers, this Court simply was not presented with the question of the degree of authority that an employee must have in order to be classified as a supervisor. [ 10 ] The parties did not focus on the issue in their briefs, although the victim in Faragher appears to have agreed that supervisors are employees empowered to take tangible employment actions. See Brief for Petitioner, O. T. 1997, No. 97–282, p. 24 (“Supervisors typically exercise broad discretionary powers over their subordinates, determining many of the terms and conditions of their employment, including their raises and prospects for pro- motion and controlling or greatly influencing whether they are to be dismissed”). For these reasons, we have no difficulty rejecting petition- er’s argument that the question before us in the present case was effectively settled in her favor by our treatment of the alleged harassers in Ellerth and Faragher. [ 11 ] The dissent acknowledges that our prior cases do “not squarely resolve whether an employee without power to take tangible employment actions may nonetheless qualify as a supervisor,” but accuses us of ignoring the “all-too-plain reality” that employees with authority to control their subordinates’ daily work are aided by that authority in perpetuating a discriminatory work environment. Post, at 8 (opinion of Ginsburg, J.). As Ellerth recognized, however, “most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation,” and consequently “something more” is required in order to warrant vicarious liability. 524 U. S., at 760. The ability to direct another employee’s tasks is simply not sufficient. Employees with such powers are certainly capable of creating intolerable work environments, see post, at 9–11 (discussing examples), but so are many other co-workers. Negligence provides the better framework for evaluating an employer’s liability when a harassing employee lacks the power to take tangible employment actions. C Although our holdings in Faragher and Ellerth do not resolve the question now before us, we believe that the answer to that question is implicit in the characteristics of the framework that we adopted. To begin, there is no hint in either Ellerth or Faragher that the Court contemplated anything other than a unitary category of supervisors, namely, those possessing the authority to effect a tangible change in a victim’s terms or conditions of employment. The Ellerth/Faragher framework draws a sharp line between co-workers and supervisors. Co-workers, the Court noted, “can inflict psychologi- cal injuries” by creating a hostile work environment, but they “cannot dock another’s pay, nor can one co-worker demote another.” Ellerth, 524 U. S., at 762. Only a supervisor has the power to cause “direct economic harm” by taking a tangible employment action. Ibid. “Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control. . . . Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates.” Ibid. (emphasis added). The strong implication of this passage is that the authority to take tangible employment actions is the defining characteristic of a supervisor, not simply a characteristic of a subset of an ill-defined class of employees who qualify as supervisors. The way in which we framed the question presented in Ellerth supports this understanding. As noted, the Ellerth/Faragher framework sets out two circumstances in which an employer may be vicariously liable for a supervisor’s harassment. The first situation (which results in strict liability) exists when a supervisor actually takes a tangible employment action based on, for example, a subordinate’s refusal to accede to sexual demands. The second situation (which results in vicarious liability if the employer cannot make out the requisite affirmative defense) is present when no such tangible action is taken. Both Ellerth and Faragher fell into the second category, and in Ellerth, the Court couched the question at issue in the following terms: “whether an employer has vicarious liability when a supervisor creates a hostile work en- vironment by making explicit threats to alter a subor- dinate’s terms or conditions of employment, based on sex, but does not fulfill the threat.” 524 U. S., at 754. This statement plainly ties the second situation to a supervisor’s authority to inflict direct economic injury. It is because a supervisor has that authority—and its potential use hangs as a threat over the victim—that vicarious liability (subject to the affirmative defense) is justified. Finally, the Ellerth/Faragher Court sought a framework that would be workable and would appropriately take into account the legitimate interests of employers and employees. The Court looked to principles of agency law for guidance, but the Court concluded that the “malleable terminology” of the aided-in-the-commission principle counseled against the wholesale incorporation of that principle into Title VII case law. Ellerth, 524 U. S., at 763. Instead, the Court also considered the objectives of Title VII, including “the limitation of employer liability in certain circumstances.” Id., at 764. The interpretation of the concept of a supervisor that we adopt today is one that can be readily applied. In a great many cases, it will be known even before litigation is commenced whether an alleged harasser was a supervi- sor, and in others, the alleged harasser’s status will become clear to both sides after discovery. And once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolving the dispute. Where this does not occur, supervisor status will generally be capable of resolution at summary judgment. By contrast, under the approach advocated by petitioner and the EEOC, supervisor status would very often be murky—as this case well illustrates. [ 12 ] According to petitioner, the record shows that Davis, her alleged harasser, wielded enough authority to qualify as a supervisor. Petitioner points in particular to Davis’ job description, which gave her leadership responsibilities, and to evidence that Davis at times led or directed Vance and other employees in the kitchen. See Brief for Petitioner 42–43 (citing record); Reply Brief 22–23 (same). The United States, on the other hand, while applying the same open-ended test for supervisory status, reaches the opposite conclusion. At least on the present record, the United States tells us, Davis fails to qualify as a supervisor. Her job description, in the Government’s view, is not dispositive, and the Government adds that it would not be enough for petitioner to show that Davis “occasionally took the lead in the kitchen.” Brief for United States as Amicus Curiae 31 (U. S. Brief). This disagreement is hardly surprising since the EEOC’s definition of a supervisor, which both petitioner and the United States defend, is a study in ambiguity. In its Enforcement Guidance, the EEOC takes the position that an employee, in order to be classified as a supervisor, must wield authority “ ‘of sufficient magnitude so as to as- sist the harasser explicitly or implicitly in carrying out the harassment.’ ” Id., at 27 (quoting App. to Pet. for Cert. 89a (EEOC Guidance)). But any authority over the work of another employee provides at least some assistance, see Ellerth, supra, at 763, and that is not what the United States interprets the Guidance to mean. Rather, it informs us, the authority must exceed both an ill-defined temporal requirement (it must be more than “occa- siona[l]”) and an ill-defined substantive requirement (“an employee who directs ‘only a limited number of tasks or assignments’ for another employee . . . would not have sufficient authority to qualify as a supervisor.” U. S. Brief 28 (quoting App. to Pet. for Cert. 92a (EEOC Guidance)); U. S. Brief 31. We read the EEOC Guidance as saying that the number (and perhaps the importance) of the tasks in question is a factor to be considered in determining whether an employee qualifies as a supervisor. And if this is a correct interpretation of the EEOC’s position, what we are left with is a proposed standard of remarkable ambiguity. The vagueness of this standard was highlighted at oral argument when the attorney representing the United States was asked to apply that standard to the situation in Faragher, where the alleged harasser supposedly threatened to assign the plaintiff to clean the toilets in the lifeguard station for a year if she did not date him. 524 U. S., at 780. Since cleaning the toilets is just one task, albeit an unpleasant one, the authority to assign that job would not seem to meet the more-than-a-limited-number-of-tasks requirement in the EEOC Guidance. Nevertheless, the Government attorney’s first response was that the authority to make this assignment would be enough. Tr. of Oral Arg. 23. He later qualified that answer by saying that it would be necessary to “know how much of the day’s work [was] encompassed by cleaning the toilets.” Id., at 23–24. He did not explain what percentage of the day’s work (50%, 25%, 10%?) would suffice. The Government attorney’s inability to provide a de- finitive answer to this question was the inevitable con- sequence of the vague standard that the Government asks us to adopt. Key components of that standard—“sufficient” authority, authority to assign more than a “limited number of tasks,” and authority that is exercised more than “occasionally”—have no clear meaning. Applying these standards would present daunting problems for the lower federal courts and for juries. Under the definition of “supervisor” that we adopt today, the question of supervisor status, when contested, can very often be resolved as a matter of law before trial. The elimination of this issue from the trial will focus the efforts of the parties, who will be able to present their cases in a way that conforms to the framework that the jury will apply. The plaintiff will know whether he or she must prove that the employer was negligent or whether the employer will have the burden of proving the elements of the Ellerth/Faragher affirmative defense. Perhaps even more important, the work of the jury, which is inevitably complicated in employment discrimination cases, will be simplified. The jurors can be given preliminary instructions that allow them to understand, as the evidence comes in, how each item of proof fits into the framework that they will ultimately be required to apply. And even where the issue of supervisor status cannot be eliminated from the trial (because there are genuine factual disputes about an alleged harasser’s authority to take tangible employment actions), this preliminary question is rela- tively straightforward. The alternative approach advocated by petitioner and the United States would make matters far more complicated and difficult. The complexity of the standard they favor would impede the resolution of the issue before trial. With the issue still open when trial commences, the parties would be compelled to present evidence and argu- ment on supervisor status, the affirmative defense, and the question of negligence, and the jury would have to grapple with all those issues as well. In addition, it would often be necessary for the jury to be instructed about two very different paths of analysis, i.e., what to do if the alleged harasser was found to be a supervisor and what to do if the alleged harasser was found to be merely a co-worker. Courts and commentators alike have opined on the need for reasonably clear jury instructions in employment discrimination cases. [ 13 ] And the danger of juror confusion is particularly high where the jury is faced with instructions on alternative theories of liability under which different parties bear the burden of proof. [ 14 ] By simplifying the process of determining who is a supervisor (and by extension, which liability rules apply to a given set of facts), the approach that we take will help to ensure that juries return verdicts that reflect the application of the correct legal rules to the facts. Contrary to the dissent’s suggestions, see post, at 14, 17, this approach will not leave employees unprotected against harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways. In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be con- sidered in determining whether the employer was negligent. The nature and degree of authority possessed by harassing employees varies greatly, see post, 9–11 (offering examples), and as we explained above, the test proposed by petitioner and the United States is ill equipped to deal with the variety of situations that will inevitably arise. This variety presents no problem for the negligence standard, which is thought to provide adequate protection for tort plaintiffs in many other situations. There is no reason why this standard, if accompanied by proper instructions, cannot provide the same service in the context at issue here. D The dissent argues that the definition of a supervisor that we now adopt is out of touch with the realities of the workplace, where individuals with the power to assign daily tasks are often regarded by other employees as supervisors. See post, at 5, 8–12. But in reality it is the alternative that is out of touch. Particularly in modern organizations that have abandoned a highly hierarchical management structure, it is common for employees to have overlapping authority with respect to the assignment of work tasks. Members of a team may each have the responsibility for taking the lead with respect to a particular aspect of the work and thus may have the responsibility to direct each other in that area of responsibility. Finally, petitioner argues that tying supervisor status to the authority to take tangible employment actions will encourage employers to attempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions. But a broad definition of “supervisor” is not necessary to guard against this concern. As an initial matter, an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment. And even if an employer concentrates all decisionmaking authority in a few individuals, it likely will not isolate itself from heightened liability under Faragher and Ellerth. If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actu- ally interact with the affected employee. Cf. Rhodes v. Illinois Dept. of Transp., 359 F. 3d 498, 509 (CA7 2004) (Rovner, J., concurring in part and concurring in judgment) (“Although they did not have the power to take formal employment actions vis-à-vis [the victim], [the harassers] necessarily must have had substantial input into those decisions, as they would have been the people most familiar with her work—certainly more familiar with it than the off-site Department Administrative Services Manager”). Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies. See Ellerth, 524 U. S., at 762. IV Importuning Congress, post, at 21–22, the dissent suggests that the standard we adopt today would cause the plaintiffs to lose in a handful of cases involving shocking allegations of harassment, see post, at 9–12. However, the dissent does not mention why the plaintiffs would lose in those cases. It is not clear in any of those examples that the legal outcome hinges on the definition of “supervisor.” For example, Clara Whitten ultimately did not prevail on her discrimination claims—notwithstanding the fact that the Fourth Circuit adopted the approach advocated by the dissent, see Whitten v. Fred’s, Inc., 601 F. 3d 231, 243–247 (2010)—because the District Court subsequently dismissed her claims for lack of jurisdiction. See Whitten v. Fred’s, Inc., No. 8:08–0218–HMH–BHH, 2010 WL 2757005, *3 (D SC, July 12, 2010). And although the dissent suggests that Donna Rhodes’ employer would have been liable under the dissent’s definition of “supervisor,” that is pure speculation: It is not clear that Rhodes suffered any tangible employment action, see Rhodes v. Illinois Dept. of Transp., 243 F. Supp. 2d 810, 817 (ND Ill. 2003), and no court had occasion to determine whether the employer could have established the affirmative defense (a prospect that is certainly feasible given that there was evidence that the employer had an “adequate anti-harassment policy in place,” that the employer promptly addressed the incidents about which Rhodes complained, and that “Rhodes failed to take advantage of the preventative or corrective opportunities provided,” Rhodes v. Illinois Dept. of Transp., 359 F. 3d, at 507). [ 15 ] Finally, the dissent’s reliance on Monika Starke’s case is perplexing given that the EEOC ultimately did obtain relief (in the amount of $50,000) for the harassment of Starke, [ 16 ] see Order of Dismissal in No. 1:07–cv–0095–LRR (ND Iowa, Feb. 2, 2013), Dkt. No. 380, Exh. 1, ¶1, notwithstanding the fact that the court in that case applied the definition of “supervisor” that we adopt today, see EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 684 (CA8 2012). In any event, the dissent is wrong in claiming that our holding would preclude employer liability in other cases with facts similar to these. Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant. Thus, it is not true, as the dissent asserts, that our holding “relieves scores of employers of responsibility” for the behavior of workers they employ. Post, at 14. The standard we adopt is not untested. It has been the law for quite some time in the First, Seventh, and Eighth Circuits, see, e.g., Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Weyers v. Lear Operations Corp., 359 F. 3d 1049, 1057 (CA8 2004); Parkins v. Civil Constructors of Ill., Inc., 163 F. 3d 1027, 1033–1034, and n. 1 (CA7 1998)—i.e., in Arkansas, Illinois, Indiana, Iowa, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, North Dakota, Rhode Island, South Dakota, and Wisconsin. We are aware of no evidence that this rule has produced dire consequences in these 14 jurisdictions. Despite its rhetoric, the dissent acknowledges that Davis, the alleged harasser in this case, would probably not qualify as a supervisor even under the dissent’s preferred approach. See post, at 20 (“[T]here is cause to anticipate that Davis would not qualify as Vance’s supervisor”). On that point, we agree. Petitioner did refer to Davis as a “supervisor” in some of the complaints that she filed, App. 28; id., at 45, and Davis’ job description does state that she supervises Kitchen Assistants and Substitutes and “[l]ead[s] and direct[s]” certain other employees, id., at 12–13. But under the dissent’s preferred approach, supervisor status hinges not on formal job titles or “paper descriptions” but on “specific facts about the working relationship.” Post, at 20–21 (internal quotation marks omitted). Turning to the “specific facts” of petitioner’s and Davis’ working relationship, there is simply no evidence that Davis directed petitioner’s day-to-day activities. The record indicates that Bill Kimes (the general manager of the Catering Division) and the chef assigned petitioner’s daily tasks, which were given to her on “prep lists.” No. 1:06–cv–1452–SEB–JMS, 2008 WL 4247836, *7 (SD Ind., Sept. 10, 2008); App. 430, 431. The fact that Davis sometimes may have handed prep lists to petitioner, see id., at 74, is insufficient to confer supervisor status, see App. to Pet. for Cert. 92a (EEOC Guidance). And Kimes—not Davis—set petitioner’s work schedule. See App. 431. See also id., at 212. Because the dissent concedes that our approach in this case deprives petitioner of none of the protections that Ti- tle VII offers, the dissent’s critique is based on nothing more than a hypothesis as to how our approach might affect the outcomes of other cases—cases where an employee who cannot take tangible employment actions, but who does direct the victim’s daily work activities in a meaningful way, creates an unlawful hostile environment, and yet does not wield authority of such a degree and nature that the employer can be deemed negligent with respect to the harassment. We are skeptical that there are a great number of such cases. However, we are confident that, in every case, the approach we take today will be more easily administrable than the approach advocated by the dissent. * * * We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim. Because there is no evidence that BSU empowered Davis to take any tangible employment actions against Vance, the judgment of the Seventh Circuit is affirmed. It is so ordered. Notes 1 See, e.g., Williams v. Waste Management of Ill., 361 F. 3d 1021, 1029 (CA7 2004); McGinest v. GTE Serv. Corp., 360 F. 3d 1103, 1119 (CA9 2004); Joens v. John Morrell & Co., 354 F. 3d 938, 940 (CA8 2004); Noviello v. Boston, 398 F. 3d 76, 95 (CA1 2005); Duch v. Jakubek, 588 F. 3d 757, 762 (CA2 2009); Huston v. Procter & Gamble Paper Prods. Corp., 568 F. 3d 100, 104–105 (CA3 2009). 2 The Restatement (Third) of Agency disposed of this exception to liability, explaining that “[t]he purposes likely intended to be met by the ‘aided in accomplishing’ basis are satisfied by a more fully elaborated treatment of apparent authority and by the duty of reasonable care that a principal owes to third parties with whom it interacts through employees and other agents.” 2 Restatement (Third) §7.08, p. 228 (2005). The parties do not argue that this change undermines our holdings in Faragher and Ellerth. 3 Faragher and Ellerth involved hostile environment claims premised on sexual harassment. Several federal courts of appeals have held that Faragher and Ellerth apply to other types of hostile environment claims, including race-based claims. See Spriggs v. Diamond Auto Glass, 242 F. 3d 179, 186, n. 9 (CA4 2001) (citing cases reflecting “the developing consensus . . . that the holdings [in Faragher and Ellerth] apply with equal force to other types of harassment claims under Title VII”). But see Ellerth, 524 U. S., at 767 (Thomas, J., dissenting) (stating that, as a result of the Court’s decision in Ellerth, “employer liability under Title VII is judged by different standards depending upon whether a sexually or racially hostile work environment is alleged”). Neither party in this case challenges the application of Faragher and Ellerth to race-based hostile environment claims, and we assume that the framework announced in Faragher and Ellerth applies to cases such as this one. 4 The United States urges us to defer to the EEOC Guidance. Brief for United States as Amicus Curiae 26–29 (citing Skidmore v. Swift & Co., ). But to do so would be proper only if the EEOC Guidance has the power to persuade, which “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Id., at 140. For the reasons explained below, we do not find the EEOC Guidance persuasive. 5 http://www.businessdictionary.com/definition/supervisor.html (all In-ternet materials as visited June 21, 2013, and available in Clerk of Court’s case file). 6 http://management.about.com/od/policiesandprocedures/g/supervisor1.html 7 One outlier that petitioner points to is the National Labor Relations Act (NLRA), . Petitioner argues that the NLRA’s definition supports her position in this case to the extent that it encompasses employees who have the ability to direct or assign work to subordinates. Brief for Petitioner 27–28. The NLRA certainly appears to define “supervisor” in broad terms. The National Labor Relations Board (NLRB) and the lower courts, however, have consistently explained that supervisory authority is not trivial or insignificant: If the term “supervisor” is construed too broadly, then employees who are deemed to be supervisors will be denied rights that the NLRA was intended to protect. E.g., In re Connecticut Humane Society, 358 NLRB No. 31, *33 (Apr. 12, 2012); Frenchtown Acquisition Co., Inc. v. NLRB, 683 F. 3d 298, 305 (CA6 2012); Beverly Enterprises-Massachusetts, Inc. v. NLRB, 165 F. 3d 960, 963 (CADC 1999). Indeed, in defining a supervisor for purposes of the NLRA, Congress sought to distinguish “between straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as theright to hire or fire, discipline, or make effective recommendations with respect to such action.” S. Rep. No. 105, 80th Cong., 1st Sess., 4 (1947). Cf. NLRB v. Health Care & Retirement Corp. of America, (HCRA) (Ginsburg, J., dissenting) (“Through case-by-case adjudication, the Board has sought to distinguish individuals exercising the level of control that truly places them in the ranks of management, from highly skilled employees, whether professional or technical, who perform, incidentally to their skilled work, a limited supervisory role”). Accordingly, the NLRB has interpreted the NLRA’s statutory definition of supervisor more narrowly than its plain language might permit. See, e.g., Connecticut Humane Society, supra, at *39 (an employee who evaluates others is not a supervisor unless the evaluation “affect[s] the wages and the job status of the employee evaluated”); In re CGLM, Inc., 350 NLRB 974, 977 (2007) (“ ‘If any authority over someone else, no matter how insignificant or infrequent, made an employee a super-visor, our industrial composite would be predominantly supervisory. Every order-giver is not a supervisor. Even the traffic director tells the president of the company where to park his car’ ” (quoting NLRB v. Security Guard Serv., Inc., 384 F. 2d 143, 151 (CA5 1967))). The NLRA therefore does not define the term “supervisor” as broadly as petitioner suggests. To be sure, the NLRA may in some instances define “supervisor” more broadly than we define the term in this case. But those differences reflect the NLRA’s unique purpose, which is to preserve the balance of power between labor and management, see HCRA, supra, at 573 (explaining that Congress amended the NLRA to exclude supervisors in order to address the “imbalance between labor and management” that resulted when “supervisory employees could organize as part of bargaining units and negotiate with the employer”). That purpose is inapposite in the context of Title VII, which focuses on eradicating discrimination. An employee may have a sufficient degree of authority over subordinates such that Congress has decided that the employee should not participate with lower level employees in the same collective-bargaining unit (because, for example, a higher level employee will pursue his own interests at the expense of lower level employees’ interests), but that authority is not necessarily sufficient to merit heightened liability for the purposes of Title VII. The NLRA’s definition of supervisor therefore is not controlling in this context. 8 The dissent suggests that it is unclear whether Terry would qualify as a supervisor under the test we adopt because his hiring decisions were subject to approval by higher management. Post, at 7, n. 1 (opinion of Ginsburg, J.). See also Faragher, 524 U. S., at 781. But we have assumed that tangible employment actions can be subject to such approval. See Ellerth, 524 U. S., at 762. In any event, the record indicates that Terry possessed the power to make employment decisions having direct economic consequences for his victims. See Brief for Petitioner in Faragher v. Boca Raton, O. T. 1997, No. 97–282, p. 9 (“No one, during the twenty years that Terry was Marine Safety Chief, was hired without his recommendation. [He] initiated firing and suspending personnel. [His] evaluations of the lifeguards translated into sal-ary increases. [He] made recommendations regarding promotions . . .” (citing record)). 9 Moreover, it is by no means certain that Silverman lacked the authority to take tangible employment actions against Faragher. In her merits brief, Faragher stated that, as a lieutenant, Silverman “made supervisory and disciplinary decisions and had input on the evaluations as well.” Id., at 9–10. If that discipline had economic consequences (such as suspension without pay), then Silverman might qualify as a supervisor under the definition we adopt today. Silverman’s ability to assign Faragher significantly different work responsibilities also may have constituted a tangible employment action. Silverman told Faragher, “ ‘Date me or clean the toilets for a year.’ ” Faragher, supra, at 780. That threatened reassignment of duties likely would have constituted significantly different responsibilities for a lifeguard, whose job typically is to guard the beach. If that reassignment had economic consequences, such as foreclosing Far-agher’s eligibility for promotion, then it might constitute a tangible employment action. 10 The lower court did not even address this issue. See Faragher v. Boca Raton, 111 F. 3d 1530, 1547 (CA11 1997) (Anderson, J., concurring in part and dissenting in part) (noting that it was unnecessary to “decide the threshold level of authority which a supervisor must possess in order to impose liability on the employer”). 11 According to the dissent, the rule that we adopt is also inconsistent with our decision in Pennsylvania State Police v. Suders, . See post, at 7–8. The question in that case was “whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes assertion of the affirmative defense articulated in Ellerth and Faragher.” Suders, supra, at 140. As the dissent implicitly acknowledges, the supervi-sor status of the harassing employees was not before us in that case. See post, at 8. Indeed, the employer conceded early in the litigation that the relevant employees were supervisors, App. in Pennsylvania State Police v. Suders, O. T. 2003, No. 03–95, p. 20 (Answer ¶29),and we therefore had no occasion to question that unchallengedcharacterization. 12 The dissent attempts to find ambiguities in our holding, see post,at 15–16, and n. 5, but it is indisputable that our holding is orders of magnitude clearer than the nebulous standard it would adopt. Employment discrimination cases present an almost unlimited numberof factual variations, and marginal cases are inevitable under any standard. 13 See, e.g., Gross v. FBL Financial Services, Inc., ; Armstrong v. Burdette Tomlin Memorial Hospital, 438 F. 3d 240, 249 (CA3 2006) (noting in the context of McDonnell Douglas Corp. v. Green, , that that “the ‘prima facie case and the shifting burdens confuse lawyers and judges, much less juries, who do not have the benefit of extensive study of the law on the subject’ ” (quoting Mogull v. Commercial Real Estate, 162 N. J. 449, 471, 744 A. 2d 1186, 1199 (2000))); Whittington v. Nordam Group Inc., 429 F. 3d 986, 998 (CA10 2005) (noting that unnecessarily complicated instructions complicate a jury’s job in employment discrimination cases, and “unnecessary complexity increases the opportunity for error”); Sanders v. New York City Human Resources Admin., 361 F. 3d 749, 758 (CA2 2004) (“Making the burden-shifting scheme of McDonnell Douglas part of a jury charge undoubtedly constitutes error because of the manifest risk of confusion it creates”); Mogull, supra, at 473, 744 A. 2d, at 1200 (“Given the confusion that often results when the first and second stages of the McDonnell Douglas test goes to the jury, we recommend that the court should decide both those issues”); Tymkovich, The Problem with Pretext, 85 Denver Univ. L. Rev. 503, 527–529 (2008) (discussing the potential for jury confusion that arises when in-structions are unduly complex and proposing a simpler framework); Grebeldinger, Instructing the Jury in a Case of Circumstantial Individual Disparate Treatment: Thoroughness or Simplicity? 12 Lab. Law. 399, 419 (1997) (concluding that more straightforward instructions “provid[e] the jury with clearer guidance of their mission”); Davis, The Stumbling Three-Step, Burden-Shifting Approach in Employment Discrimination Cases, 61 Brook. L. Rev. 703, 742–743 (1995) (discussing potential for juror confusion in the face of complex instructions); Note, Toward a Motivating Factor Test for Individual Disparate Treatment Claims, 100 Mich. L. Rev. 234, 262–273 (2001) (discussing the need for a simpler approach to jury instructions in employment discrimination cases). 14 Cf. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions, 51 Boston College L. Rev. 279, 330–334 (2010) (arguing that unnecessary confusion arises when a jury must resolve different claims under different burden frameworks); Monahan, Cabrera v. Jakabovitz—A Common-Sense Proposal for Formulating Jury Instructions Regarding Shifting Burdens of Proof in Disparate Treatment Discrimination Cases, 5 Geo. Mason U. C. R. L. J. 55, 76 (1994) (“Any jury instruction that attempts to shift the burden of per-suasion on closely related issues is never likely to be successful”). 15 Similarly, it is unclear whether Yasharay Mack ultimately would have prevailed even under the dissent’s definition of “supervisor.” The Second Circuit (adopting a definition similar to that advocated by the dissent) remanded the case for the District Court to determine whether Mack “ ‘unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.’ ” Mack v. Otis Elevator Co., 326 F. 3d 116, 127–128 (2003) (quoting Ellerth, 524 U. S., at 765). But before it had an opportunity to make any such determination, Mack withdrew her complaint and the District Court dismissed her claims with prejudice. See Stipulation and Order of Dismissal in No. 1:00–cv–7778–LAP (SDNY, Oct. 21, 2004), Dkt. No. 63. 16 Starke herself lacked standing to pursue her claims, see EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 678, and n. 14 (CA8 2012), but the Eighth Circuit held that the EEOC could sue in its own name to remedy the sexual harassment against Starke and other CRST employees, see id., at 682.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus VANCE v. BALL STATE UNIVERSITY et al. certiorari to the united states court of appeals for the seventh circuit No. 11–556. Argued November 26, 2012—Decided June 24, 2013 Under Title VII, an employer’s liability for workplace harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action (i.e., “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761), the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Faragher v. Boca Raton, 524 U.S. 775, 807; Ellerth, supra, at 765. Petitioner Vance, an African-American woman, sued her employer, Ball State University (BSU) alleging that a fellow employee, Saundra Davis, created a racially hostile work environment in violation of Title VII. The District Court granted summary judgment to BSU. It held that BSU was not vicariously liable for Davis’ alleged actions because Davis, who could not take tangible employment actions against Vance, was not a supervisor. The Seventh Circuit affirmed. Held: An employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim. . (a) Petitioner errs in relying on the meaning of “supervisor” in general usage and in other legal contexts because the term has varying meanings both in colloquial usage and in the law. In any event, Congress did not use the term “supervisor” in Title VII, and the way to understand the term’s meaning for present purposes is to consider the interpretation that best fits within the highly structured framework adopted in Faragher and Ellerth. . (b) Petitioner misreads Faragher and Ellerth in claiming that those cases support an expansive definition of “supervisor” because, in her view, at least some of the alleged harassers in those cases, whom the Court treated as supervisors, lacked the authority that the Seventh Circuit’s definition demands. In Ellerth, there was no question that the alleged harasser, who hired and promoted his victim, was a supervisor. And in Faragher, the parties never disputed the characterization of the alleged harassers as supervisors, so the question simply was not before the Court. . (c) The answer to the question presented in this case is implicit in the characteristics of the framework that the Court adopted in Ellerth and Faragher, which draws a sharp line between co-workers and supervisors and implies that the authority to take tangible employment actions is the defining characteristic of a supervisor. Ellerth, supra, at 762. The interpretation of the concept of a supervisor adopted today is one that can be readily applied. An alleged harasser’s supervisor status will often be capable of being discerned before (or soon after) litigation commences and is likely to be resolved as a matter of law before trial. By contrast, the vagueness of the EEOC’s standard would impede the resolution of the issue before trial, possibly requiring the jury to be instructed on two very different paths of analysis, depending on whether it finds the alleged harasser to be a supervisor or merely a co-worker. This approach will not leave employees unprotected against harassment by co-workers who possess some authority to assign daily tasks. In such cases, a victim can prevail simply by showing that the employer was negligent in permitting the harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor in determining negligence. . (d) The definition adopted today accounts for the fact that many modern organizations have abandoned a hierarchical management structure in favor of giving employees overlapping authority with respect to work assignments. Petitioner fears that employers will attempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions, but a broad definition of “supervisor” is not necessary to guard against that concern. . 646 F.3d 461, affirmed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.

Employer is a supervisor for purposes of vicarious liability under Title VII of the Civil Rights Act of 1964 only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a nonsig- nificant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (Ellerth), and Far- agher v. Boca Raton,, distinguished... (a) Under the applicable rule of Rogers v. EEOC, 454 F. 2d 234, an employer may be vicariously liable for an employee's unlawful harassment only when he or she is empowered by the employer to take such tangible employment action. Here, there is no hint in either case that the Court contemplated anything other than a unitary category of supervisors, namely, those possessing the authority to effect a tangible change in a victim's terms or conditions of employment. The record shows that petitioner, a white woman, wielded enough authority to qualify as a supervisor. However, the record indicates that petitioner at times led or directed petitioner and other employees in the kitchen, and that petitioner failed to take advantage of the preventative or corrective opportunities provided by the Catering Division. Thus, petitioner did not prevail in her discrimination claims. She withdrew her complaint in the District Court, claiming that she had been subjected to a hostile work environment in violation of Title VII. The Court entered summary judgment for BSU, holding that it could not be liable in negligence because it responded reasonably to the incidents of which it was aware. The Court further held that the BSU was not negligent with respect to her conduct, and affirmed. Held: 1. An employee is a "supervisor" for vicarious Liability purposes under § 775 of the Act if he is empowered to take tangible employment actions. . 2. The term supervisor is not a term used by Congress in Title VII, but rather is a label for the class of employees whose misconduct may give rise to vicarious employer liability. Accordingly, the way to understand the meaning of the term supervisor for present purposes is to consider the interpretation that best fits within the highly structured framework that those cases adopted.. 3. Petitioner is correct in her contention that at least some of the alleged harassers in those cases, whom she treated as supervisors, lacked the authority that the Seventh Circuit's definition of a supervisor demanded. The Seventh Circuit adopted a framework that comports with the Court's general understanding of the concept of supervisors. That framework is one under which supervisory status can usually be readily determined, generally by written documentation. Moreover, it is by no means certain that Silverman, who allegedly harassed petitioner, lacked authority to take meaningful employment actions, since his job description is not dispositive, and since it would not be enough for petitioner to show that he sometimes took the lead in her kitchen. In addition, it would often be necessary for the jury to be instructed about two very different paths of analysis. P.. 4. This Court will not adopt a standard that will cause petitioner to lose in a handful of cases involving shocking allegations of harassment, since it will not leave employees unprotected against harassment by co-workers who possess the power to inflict psychological injury by assigning unpleasant tasks or by altering the work environment, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be con- sidered in determining whether the employer was negligent. Pennsylvania State Police v. Suders, supra, at 776. Although the standard adopted here is not untested, it will help to ensure that juries return verdicts that reflect the application of the correct legal rules to the facts. See, e.g., Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (CA7), ibid., at 762. By simplifying the process of determining who is a supervisors (and by extension, which liability rules apply to a given set of facts), the approach that this Court will take will help ensure that, in every case, the approach will be more easily administrable than the approach advocated by the dissenting Members of the Court. Furthermore, the rule adopted is inconsistent with this Court, since the question of whether BSU empowered Davis to take any meaningful employment action against her was not raised in the cases before the court, but was simply a question of fact presented by the plaintiff. Assuming, argu- ment notwithstanding, that the plaintiff could prevail in the employment discrimination cases, she would still have standing to sue the EEOC for harassment in her own name, since she did not claim that she was being harassed by her employer. Nor does the legal outcome hinge on the definition of the supervisor, since a broad definition

2012_12-98

https://www.oyez.org/cases/2012/12-98

. A federal statute prohibits States from attaching a lien on the property of a Medicaid beneficiary to recover ben-efits paid by the State on the beneficiary’s behalf. 42 U. S. C. §1396p(a)(1). The anti-lien provision pre-empts a State’s effort to take any portion of a Medicaid beneficiary’s tort judgment or settlement not “designated as pay-ments for medical care.” Arkansas Dept. of Health and Human Servs. v. Ahlborn, 547 U.S. 268, 284 (2006). North Carolina has enacted a statute requiring that up to one-third of any damages recovered by a beneficiary for a tortious injury be paid to the State to reimburse it for pay-ments it made for medical treatment on account of the in-jury. See N. C. Gen. Stat. Ann. §108A–57 (Lexis 2011); Andrews v. Haygood, 362 N. C. 599, 604–605, 669 S.E.2d 310, 314 (2008). The question presented is whether the North Carolina statute is compatible with the federal anti-lien provision. I When respondent E. M. A. was born in February 2000, she suffered multiple serious birth injuries which left her deaf, blind, and unable to sit, walk, crawl, or talk. The injuries also cause her to suffer from mental retardation and a seizure disorder. She requires between 12 and 18 hours of skilled nursing care per day. She will not be able to work, live independently, or provide for her basic needs. The cost of her ongoing medical care is paid in part by the State of North Carolina’s Medicaid program. In February 2003, E. M. A. and her parents filed a medical malpractice suit in North Carolina state court against the physician who delivered E. M. A. at birth and the hospital where she was born. The expert witnesses for E. M. A. and her parents in that proceeding estimated damages in excess of $42 million for medical and life-care expenses, loss of future earning capacity, and other assorted expenses such as architectural renovations to their home and specialized transportation equipment. App. 91–112. By far the largest part of this estimate was for “Skilled Home Care,” totaling more than $37 million over E. M. A.’s lifetime. Id., at 112. E. M. A. and her parents also sought damages for her pain and suffering and for her parents’ emotional distress. Id., at 64–65, 67–68, 72–73, 75–76. Their experts did not estimate the damages in these last two categories. Assisted by a mediator, the parties began settlement negotiations. E. M. A. and her parents informed the North Carolina Department of Health and Human Services of the negotiations. The department had a statutory right to intervene in the malpractice suit and participate in the settlement negotiations in order to obtain reimbursement for the medical expenses it paid on E. M. A.’s behalf, up to one-third of the total recovery. See N. C. Gen. Stat. Ann. §§108A–57, 108A–59. It elected not to do so, though its representative informed E. M. A. and her parents that the State’s Medicaid program had expended $1.9 million for E. M. A.’s medical care, which it would seek to recover from any tort judgment or settlement. In November 2006, the court approved a $2.8 million settlement. The amount, apparently, was dictated in large part by the policy limits on the defendants’ medical malpractice insurance coverage. See Brief for Respondents 5. The settlement agreement did not allocate the money among the different claims E. M. A. and her parents had advanced. In approving the settlement the court placed one-third of the $2.8 million recovery into an interest-bearing escrow account “until such time as the actual amount of the lien owed by [E. M. A.] to [the State] is con-clusively judicially determined.” App. 87. E. M. A. and her parents then filed this action under Rev. Stat. §1979, 42 U. S. C. §1983, in the United States District Court for the Western District of North Carolina. They sought declaratory and injunctive relief, arguing that the State’s reimbursement scheme violated the Medicaid anti-lien provision, §1396p(a)(1). While that litigation was pending, the North Carolina Supreme Court con-fronted the same question in Andrews, supra. It held that the irrebuttable statutory presumption that one-third of a Medicaid beneficiary’s tort recovery is attributable to medical expenses was “a reasonable method for determining the State’s medical reimbursements.” Id., at 604, 669 S. E. 2d, at 314. The United States District Court, in the instant case, agreed. Armstrong v. Cansler, 722 F. Supp. 2d 653 (2010). The Court of Appeals for the Fourth Circuit vacated and remanded. E. M. A. v. Cansler, 674 F.3d 290 (2012). It concluded that North Carolina’s statutory scheme could not be reconciled with “Ahlborn’s clear holding that the general anti-lien provision in federal Medicaid law prohibits a state from recovering any portion of a settlement or judgment not attributable to medical expenses.” Id., at 310. In some cases, the court reasoned, the actual portion of a beneficiary’s tort recovery representing payment for medical care would be less than one-third. North Caro-lina’s statutory presumption that one-third of a tort recovery is attributable to medical expenses therefore must be “subject to adversarial testing” in a judicial or administrative proceeding. Id., at 311. To resolve the conflict between the opinion of the Court of Appeals in this case and the decision of the North Carolina Supreme Court in Andrews, this Court granted certiorari. 567 U. S. ___ (2012). II At issue is the interaction between certain provisions of the federal Medicaid statute and state law. Congress has directed States, in administering their Medicaid programs, to seek reimbursement for medical expenses incurred on behalf of beneficiaries who later recover from third-party tortfeasors. States must require beneficiaries “to assign the State any rights . . . to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party.” 42 U. S. C. §1396k(a)(1)(A). States receiving Medi-caid funds must also “ha[ve] in effect laws under which, to the extent that payment has been made under the State plan for medical assistance for health care items or services furnished to an individual, the State is considered to have acquired the rights of such individual to payment by any other party for such health care items or services.” §1396a(a)(25)(H). A separate provision of the Medicaid statute, however, exists in some tension with these requirements. It says that, with exceptions not relevant here, “[n]o lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan.” §1396p(a)(1). In Ahlborn, the Court addressed this tension and held that the Medicaid statute sets both a floor and a ceiling on a State’s potential share of a beneficiary’s tort recovery. Federal law requires an assignment to the State of “the right to recover that portion of a settlement that represents payments for medical care,” but it also “precludes attachment or encumbrance of the remainder of the settlement.” 547 U. S., at 282, 284. This is so because the beneficiary has a property right in the proceeds of the settlement, bringing it within the ambit of the anti-lien provision. Id., at 285. That property right is subject to the specific statutory “exception” requiring a State to seek reimbursement for medical expenses paid on the beneficiary’s behalf, but the anti-lien provision protects the beneficiary’s interest in the remainder of the settlement. Id., at 284. A question the Court had no occasion to resolve in Ahlborn is how to determine what portion of a settlement represents payment for medical care. The parties in that case stipulated that about 6 percent of respondent Ahlborn’s tort recovery (approximately $35,600 of a $550,000 settlement) represented compensation for medical care. Id., at 274. The Court nonetheless anticipated the concern that some settlements would not include an itemized allocation. It also recognized the possibility that Medicaid beneficiaries and tortfeasors might collaborate to allocate an artificially low portion of a settlement to medical expenses. The Court noted that these problems could “be avoided either by obtaining the State’s advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision.” Id., at 288. North Carolina has attempted a different approach. Its statute provides: “Notwithstanding any other provisions of the law, to the extent of payments under this Part, the State, or the county providing medical assistance benefits, shall be subrogated to all rights of recovery, contractual or otherwise, of the beneficiary of this assistance . . . . The county attorney, or an attorney retained by the county or the State or both, or an attorney retained by the beneficiary of the assistance if this attorney has actual notice of payments made under this Part shall enforce this section. Any attorney retained by the beneficiary of the assistance shall, out of the proceeds obtained on behalf of the beneficiary by settlement with, judgment against, or otherwise from a third party by reason of injury or death, distribute to the Department the amount of assistance paid by the Department on behalf of or to the beneficiary, as prorated with the claims of all others having medical subrogation rights or medical liens against the amount received or recovered, but the amount paid to the Department shall not exceed one-third of the gross amount obtained or recovered.” N. C. Gen. Stat. Ann. §108A–57(a). Before Ahlborn was decided, North Carolina and the state courts interpreted this statute to allow the State to “recover the costs of medical treatment provided . . . even when the funds received by the [beneficiary] are not re- imbursement for medical expenses.” Campbell v. North Carolina Dept. of Human Resources, 153 N. C. App. 305, 307–308, 569 S.E.2d 670, 672 (2002). See also Ezell v. Grace Hospital, Inc., 360 N. C. 529, 631 S.E.2d 131 (2006) (per curiam). Under Ahlborn, however, this construction of the statute is at odds with the Medicaid anti-lien provision, which “precludes attachment or encum- brance” of any portion of a settlement not “designated as payments for medical care.” 547 U. S., at 284. In response to Ahlborn, the State advanced—and the North Carolina Supreme Court in Andrews accepted— a new interpretation of its statute. Under this interpretation the statute “defines ‘the portion of the settlement that represents payment for medical expenses’ as the lesser of the State’s past medical expenditures or one-third of the plaintiff’s total recovery.” Andrews, 362 N. C., at 604, 669 S. E. 2d, at 314. In other words, when the State’s Medicaid expenditures on behalf of a beneficiary exceed one-third of the beneficiary’s tort recovery, the statute establishes a conclusive presumption that one-third of the recovery represents compensation for medical expenses. Under this reading of the statute the presumption operates even if the settlement or a jury verdict expressly allocates a lower percentage of the judgment to medical expenses. See Tr. of Oral Arg. 10, 16–17. Cf. Andrews, supra, at 602–604, 669 S. E. 2d, at 313. III A Under the Supremacy Clause, “[w]here state and federal law ‘directly conflict,’ state law must give way.” PLIVA, Inc. v. Mensing, 564 U. S. ___, ___ (2011) (slip op., at 11). The Medicaid anti-lien provision prohibits a State from making a claim to any part of a Medicaid beneficiary’s tort recovery not “designated as payments for medical care.” Ahlborn, supra, at 284. North Carolina’s statute, therefore, is pre-empted if, and insofar as, it would operate that way. And it is pre-empted for that reason. The defect in §108A–57 is that it sets forth no process for determining what portion of a beneficiary’s tort recovery is attributable to medical expenses. Instead, North Carolina has picked an arbitrary number—one-third—and by statutory command labeled that portion of a beneficiary’s tort recovery as representing payment for medical care. Pre-emption is not a matter of semantics. A State may not evade the pre-emptive force of federal law by resorting to creative statutory interpretation or description at odds with the statute’s intended operation and effect. A similar issue was presented last Term, in National Meat Assn. v. Harris, 565 U. S. ___ (2012). That case involved the pre-emptive scope of the Federal Meat Inspection Act, 21 U. S. C. §601 et seq. The Act prohibited States from imposing “ ‘[r]equirements . . . with respect to premises, facilities and operations’ ” at federally regulated slaughterhouses. National Meat Assn., 565 U. S., at ___ (slip op., at 4) (quoting §678). The State of California had enacted a law that prohibited slaughterhouses from (among other things) selling meat from nonambulatory ani- mals for human consumption. Id., at ___ (slip op., at 5) (citing Cal. Penal Code Ann. §599f(b) (West 2010)). California sought to defend the law on the ground that it did not regulate the activities of slaughterhouses but instead restricted what type of meat could be sold in the marketplace after the animals had been butchered. 565 U. S., at ___–___ (slip op., at 9–10). The Court rejected that argument. It recognized that if the argument were to prevail, “then any State could im-pose any regulation on slaughterhouses just by framing it as a ban on the sale of meat produced in whatever way the State disapproved. That would make a mockery of the [Act’s] preemption provision.” Id., at ___ (slip op., at 10). In a pre-emption case, the Court held, a proper analysis requires consideration of what the state law in fact does, not how the litigant might choose to describe it. That reasoning controls here. North Carolina’s argument, if accepted, would frustrate the Medicaid anti-lien provision in the context of tort recoveries. The argument lacks any limiting principle: If a State arbitrarily may designate one-third of any recovery as payment for medical expenses, there is no logical reason why it could not designate half, three-quarters, or all of a tort recovery in the same way. In Ahlborn, the State of Arkansas, under this rationale, would have succeeded in claiming the full amount it sought from the beneficiary had it been more creative and less candid in describing the effect of its full-reimbursement law. Here the State concedes that it would be “difficult . . . to defend” a law purporting to allocate most or all of a beneficiary’s tort recovery to medical expenses. Tr. of Oral Arg. 20. That is true; but, as a doctrinal matter, it is no eas- ier to defend North Carolina’s across-the-board allocation of one-third of all beneficiaries’ tort recoveries to medical ex-penses. The problem is not that it is an unreasonable ap-proximation in all cases. In some cases, it may well be a fair estimate. But the State provides no evidence to substantiate its claim that the one-third allocation is reasonable in the mine run of cases. Nor does the law provide a mechanism for determining whether it is a reasonable approximation in any particular case. In some instances, no estimate will be necessary or appropriate. When there has been a judicial finding or approval of an allocation between medical and nonmedical damages—in the form of either a jury verdict, court decree, or stipulation binding on all parties—that is the end of the matter. Ahlborn was a case of this sort. All parties (including the State of Arkansas) stipulated that approximately 6 percent of the plaintiff’s settlement represented payment for medical costs. 547 U. S., at 274. In other cases a settlement may not be reached and the judge or jury, in its findings, may make an allocation. With a stipulation or judgment under this procedure, the anti-lien provision protects from state demand the portion of a beneficiary’s tort recovery that the stipulation or judgment does not attribute to medical expenses. North Carolina’s statute, however, operates to allow the State to take one-third of the total recovery, even if a proper stipulation or judgment attributes a smaller percentage to medical expenses. Consider the facts of Ahlborn. There, only $35,581.47 of the beneficiary’s settlement “constituted reimbursement for medical payments made.” Ibid. North Carolina’s statute, had it been applied in Ahlborn, would have allowed the State to claim $183,333.33 (one-third of the beneficiary’s $550,000 settlement). A conflict thus exists between North Carolina’s law and the Medicaid anti-lien provision. The instant case, to be sure, is not quite so clear cut; for there was no allocation of the settlement by either judi- cial decree or binding stipulation of the parties. But the reasoning of Ahlborn and the design of the federal statute contemplate that possibility. When the State and the beneficiary are unable to agree on an allocation, Ahlborn noted, the parties could “submi[t] the matter to a court for decision.” Id., at 288. The facts of the present case demonstrate why Ahlborn anticipated that a judicial or administrative proceeding would be necessary in that situation. Of the damages stemming from the injuries E. M. A. suffered at birth, it is apparent that a quite substantial share must be allocated to the skilled home care she will require for the rest of her life. See App. 112. It also may be necessary to consider how much E. M. A. and her parents could have expected to receive as compensation for their other tort claims had the suit proceeded to trial. An irrebuttable, one-size-fits-all statutory presumption is incompatible with the Medicaid Act’s clear mandate that a State may not demand any por- tion of a beneficiary’s tort recovery except the share that is attributable to medical expenses. B North Carolina offers responses to this reasoning, but none is persuasive. First, the State asserts that it is doing nothing more than what Ahlborn said it could do: “adop[t] special rules and procedures for allocating tort settlements.” 547 U. S., at 288, n. 18. This misreads Ahlborn. There the Court, citing an amicus brief, referred to judicial proceedings some States had established for allocating tort settlements where necessary for insurance or tax purposes. See Brief for Association of Trial Lawyers of America, O. T. 2005, No. 04–1506, pp. 20–21 (citing Henning v. Wineman, 306 N.W.2d 550 (Minn. 1981), and Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982)). Those examples illustrated the kind of “special rules and procedures for allocating tort settlements” that Ahlborn con- sidered. The decision did not endorse irrebuttable presumptions that designate some arbitrary fraction of a tort judgment to medical expenses in all cases. Second, North Carolina contends that its law falls within the scope of a State’s traditional authority to regulate tort actions, including the amount of damages that a party may recover. This argument begins from a correct premise: In our federal system, there is no question that States possess the “traditional authority to provide tort remedies to their citizens” as they see fit. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984). But North Carolina’s law is not an exercise of the State’s general authority to regulate its tort system. It does not limit tort plaintiffs’ ability to recover for certain types of nonmedical damages, and it does not say that medical damages are to be privileged above other damages in tort suits. All it seeks to do is to allocate the share of damages attributable to medical expenses in tort suits brought by Medicaid beneficiaries. A statute that singles out Medicaid beneficiaries in this manner cannot avoid compliance with the federal anti-lien provision merely by relying upon a connection to an area of traditional state regulation. Third, North Carolina suggests that even though its allocation of one-third of a tort recovery to medical expenses may be arbitrary, other methods for allocating a recovery would be just as arbitrary. In the State’s view there is no “ascertainable ‘true value’ of [a] case that should control what portion of any settlement is subject to the State’s third-party recovery rights.” Brief for Petitioner 26–27. As explained earlier, allocations, while to some extent perhaps not precise, need not be arbitrary. See supra, at 9–10. In some cases a judgment or stipulation binding on all parties will allocate the plaintiff’s recovery across different claims. Where no such judgment or stipulation exists, a fair allocation of such a settlement may be difficult to determine. Trial judges and trial lawyers, however, can find objective benchmarks to make projections of the damages the plaintiff likely could have proved had the case gone to trial. In the instant case, for example, the North Carolina trial court approved the settlement only after finding that it constituted “fair and just compensation” to E. M. A. and her parents for her “severe and debilitating injuries”; for “medical and life care expenses” her condition will require; and for “severe emotional distress” from her injuries. App. 82. What portion of this lump-sum settlement constitutes “fair and just compensation” for each individual claim will depend both on how likely E. M. A. and her parents would have been to prevail on the claims at trial and how much they reasonably could have expected to receive on each claim if successful, in view of damages awarded in comparable tort cases. This relates to North Carolina’s fourth argument: that it would be “wasteful, time consuming, and costly” to hold “frequent mini-trials” in order to divide a settlement between medical and nonmedical expenses. Brief for Petitioner 28. Even if that were true, it would not relieve the State of its obligation to comply with the terms of the Medicaid anti-lien provision. And it is not true as a general proposition. States have considerable latitude to design administrative and judicial procedures to ensure a prompt and fair allocation of damages. Sixteen States and the District of Columbia provide for hearings of this sort, and there is no indication that they have proved bur- densome. Brief for United States as Amicus Curiae 28– 29, and n. 7. See, e.g., Cal. Welf. & Inst. Code Ann. §14124.76(a) (West 2011); Mo. Rev. Stat. §§208.215.9–11 (2012); Tenn. Code Ann. §§71–5–117(g)–(i) (2012); In re E. B., 229 W. Va. 435, ___, 729 S.E.2d 270, 297 (2012). Many of these States have established rebuttable presumptions and adjusted burdens of proof to ensure that speculative assessments of a plaintiff’s likely recovery do not defeat the State’s right to recover medical costs, a concern North Carolina raises. See, e.g., Haw. Rev. Stat. §346–37(h) (2011 Cum. Supp.) (rebuttable presumption of a one-third allocation); Mass. Gen. Laws, ch. 118E, §22(c) (West 2010) (rebuttable presumption of full reimbursement); Okla. Stat., Tit. 63, §5051.1(D)(1)(d) (West 2011) (rebuttable presumption of full reimbursement, “unless a more limited allocation of damages to medical expenses is shown by clear and convincing evidence”). Without holding that these rules are necessarily compliant with the federal statute, it can be concluded that they are more accurate than the procedure North Carolina has enacted. The task of dividing a tort settlement is a familiar one. In a variety of settings, state and federal courts are called upon to separate lump-sum settlements or jury awards into categories to satisfy different claims to a portion of the moneys recovered. See supra, at 11. See also, e.g., Green v. Commissioner, 507 F.3d 857, 867–868 (CA5 2007) (separation of compensatory from noncompensatory damages for tax purposes); Donnel v. United States, 50 Fed. Cl. 375, 386–387 (2001) (separation of employee severance bonus from other payments for tax purposes); In re Harrison, 306 B.R. 172, 182–183 (Bkrtcy. Ct. ED Tex. 2003) (separation of pain-and-suffering damages from other damages for purposes of bankruptcy exemption); Colorado Compensation Ins. Auth. v. Jones, 131 P.3d 1074, 1077–1078 (Colo. App. 2005) (separation of economic from noneconomic damages for purposes of insurance sub- rogation); Spangler v. North Star Drilling Co., 552 So. 2d 673, 685 (La. App. 1989) (separation of past dam- ages from future damages for purposes of calculating pre- judgment interest). Indeed, North Carolina itself uses a judicial allocation procedure to ascertain the portion of a settlement subject to subrogation in a workers’ compensation suit. It instructs trial courts to “consider the anticipated amount of prospective compensation the employer or workers’ compensation carrier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable.” N. C. Gen. Stat. Ann. §97– 10.2(j) (Lexis 2011). North Carolina would be on sounder footing had it adopted a similar procedure for allocating Medicaid beneficiaries’ tort recoveries. It might also consider a different one along the lines of what other States have done in Medicaid reimbursement cases. The State thus has ample means available to allocate Medicaid beneficiaries’ tort recoveries in an efficient manner that complies with federal law. Indeed, if States are concerned that case-by-case judicial allocations will prove unwieldy, they may even be able to adopt ex ante administrative criteria for allocating medical and nonmedical expenses, provided that these criteria are backed by evidence suggesting that they are likely to yield reasonable results in the mine run of cases. What they cannot do is what North Carolina did here: adopt an arbitrary, one-size-fits-all allocation for all cases. Fifth, and finally, North Carolina contends that in two documents—a July 2006 memorandum and a December 2009 letter responding to an inquiry from a member of North Carolina’s congressional delegation—the federal Centers for Medicare and Medicaid Services approved of North Carolina’s statutory scheme for Medicaid reimbursement. In the State’s view, these agency pronouncements are entitled to deference. See Brief for Petitioner 33–36 (citing Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). The 2006 and 2009 documents, however, no longer re-flect the agency’s position. See Brief for United States as Amicus Curiae 8–34. And at any rate, the documents are opinion letters, not regulations with the force of law. We have held that “[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.” Christensen v. Harris County, 529 U.S. 576, 587 (2000). These documents are “ ‘entitled to respect’ ” in proportion to their “ ‘power to persuade.’ ” Ibid. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Insofar as the 2006 and 2009 documents approve of North Carolina’s statute, they lack persuasive force for the reasons discussed above. * * * The law here at issue, N. C. Gen. Stat. Ann. §108A–57, reflects North Carolina’s effort to comply with federal law and secure reimbursement from third-party tortfeasors for medical expenses paid on behalf of the State’s Medicaid beneficiaries. In some circumstances, however, the statute would permit the State to take a portion of a Medicaid beneficiary’s tort judgment or settlement not “designated as payments for medical care.” Ahlborn, 547 U. S., at 284. The Medicaid anti-lien provision, 42 U. S. C. §1396p(a)(1), bars that result. The judgment of the Court of Appeals for the Fourth Circuit is affirmed. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus WOS, SECRETARY, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES v. E. M. A., a minor, by and through her guardian ad litem, JOHNSON, et al. certiorari to the united states court of appeals for the fourth circuit No. 12–98. Argued January 8, 2013—Decided March 20, 2013 The federal Medicaid statute’s anti-lien provision, 42 U. S. C. §1396p(a)(1), pre-empts a State’s effort to take any portion of a Medicaid beneficiary’s tort judgment or settlement not “designated as payments for medical care,” Arkansas Dept. of Health and Human Servs. v. Ahlborn, 547 U.S. 268, 284. A North Carolina statute requires that up to one-third of any damages recovered by a beneficiary for a tortious injury be paid to the State to reimburse it for payments it made for medical treatment on account of the injury. Respondent E. M. A. was born with multiple serious birth injuries that require her to receive between 12 and 18 hours of skilled nursing care per day and that will prevent her from being able to work, live independently, or provide for her basic needs. North Carolina’s Medicaid program pays part of the cost of her ongoing medical care. E. M. A. and her parents filed a medical malpractice suit against the physician who delivered her and the hospital where she was born. They presented expert testimony estimating their damages to exceed $42 million, but they ultimately settled for $2.8 million, due in large part to insurance policy limits. The settlement did not allocate money among their various medical and nonmedical claims. In approving the settlement, the state court placed one-third of the recovery into escrow pending a judicial determination of the amount of the lien owed by E. M. A. to the State. E. M. A. and her parents then sought declaratory and injunctive relief in Federal District Court, claiming that the State’s reimbursement scheme violated the Medicaid anti-lien provision. While that litigation was pending, the North Carolina Supreme Court held in another case that the irrebuttable statutory one-third presumption was a reasonable method for determining the amount due the State for medical expenses. The Federal District Court, in the instant case, agreed. But the Fourth Circuit vacated and remanded, concluding that the State’s statutory scheme could not be reconciled with Ahlborn. Held: The federal anti-lien provision pre-empts North Carolina’s irrebuttable statutory presumption that one-third of a tort recovery is attributable to medical expenses. . (a) In Ahlborn, the Court held that the federal Medicaid statute sets both a floor and a ceiling on a State’s potential share of a beneficiary’s tort recovery. Federal law requires an assignment to the State of “the right to recover that portion of a settlement that represents payments for medical care,” but also “precludes attachment or encumbrance of the remainder of the settlement.” 547 U. S., at 282, 284. Ahlborn did not, however, resolve the question of how to determine what portion of a settlement represents payment for medical care. As North Carolina construes its statute, when the State’s Medicaid expenditures exceed one-third of a beneficiary’s tort recovery, the statute establishes a conclusive presumption that one-third of the recovery represents compensation for medical expenses, even if the settlement or verdict expressly allocates a lower percentage of the judgment to medical expenses. . (b) North Carolina’s law is pre-empted insofar as it would permit the State to take a portion of a Medicaid beneficiary’s tort judgment or settlement not designated for medical care. It directly conflicts with the federal Medicaid statute and therefore “must give way.” PLIVA, Inc. v. Mensing, 564 U. S. ___, ___. The state law has no process for determining what portion of a beneficiary’s tort recovery is attributable to medical expenses. Instead, the State has picked an arbitrary percentage and by statutory command labeled that portion of a beneficiary’s tort recovery as representing payment for medical care. A State may not evade pre-emption through creative statutory interpretation or description, “framing” its law in a way that is at odds with the statute’s intended operation and effect. National Meat Assn. v. Harris, 565 U. S. ___, ___. North Carolina’s argument, if accepted, would frustrate the Medicaid anti-lien provision in the context of tort recoveries. It lacks any limiting principle: If a State could arbitrarily designate one-third of any recovery as payment for medical expenses, it could arbitrarily designate half or all of the recovery in the same way. The State offers no evidence showing that its allocation is reasonable in the mine run of cases, and the law provides no mechanism for determining whether its allocation is reasonable in any particular case. No estimate of an allocation will be necessary where there has been a judicial finding or approval of an allocation between medical and nonmedical damages. In some cases, including Ahlborn, this binding stipulation or judgment will attribute to medical expenses less than one-third of the settlement. Yet even in these circumstances, North Carolina’s statute would permit the State to take one-third of the total recovery. A conflict thus exists between North Carolina’s law and the Medicaid anti-lien provision. This case is not as clear-cut as Ahlborn was, for here there was no such stipulation or judgment. But Ahlborn’s reasoning and the federal statute’s design contemplate that possibility: They envisioned that a judicial or administrative proceeding would be necessary where a beneficiary and the State are unable to agree on what portion of a settlement represents compensation for medical expenses. See 547 U. S., at 288. North Carolina’s irrebuttable, one-size-fits-all statutory presumption is incompatible with the Medicaid Act’s clear mandate that a State may not demand any portion of a beneficiary’s tort recovery except the share that is attributable to medical ex-penses. . (c) None of North Carolina’s responses to this reasoning is persuasive. . 674 F.3d 290, affirmed. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Breyer, J., filed a concurring opinion. Roberts, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.

Respondent E. M. A. and her parents filed a malpractice suit in a North Carolina state court against a physician who delivered her at birth and the hospital where she was born. The expert witnesses for the proceeding estimated damages in excess of $42 million for medical and life-care expenses, loss of future earning capacity, and other assorted expenses such as architectural renovations to their home and specialized transportation equipment. The State had a statutory right to intervene in the malpractice action and participate in the settlement negotiations in order to obtain reimbursement for the medical expenses it paid on the beneficiary's behalf, up to one-third of the total recovery. However, the state court elected not to do so, though its representative informed the beneficiaries that the State's Medicaid program had expended $1.9 million for the beneficiary, which it would seek to recover from any tort judgment or settlement. In November 2006, the court approved a $2.8 million settlement, which did not allocate the money among the different claims, and placed the amount of the recovery into an interest-bearing escrow account until the actual amount owed was conclusively determined by the State. Appellants then filed an action in Federal District Court, seeking declaratory and injunctive relief under 42 U.S.C. §1396p(a)(1), which precludes a State from attaching a lien on the property of a Medicaid beneficiary to recover any portion of a settlement or judgment not attributable to medical expenses. The District Court held that North Carolina's statutory scheme violated the federal anti-lien provision of the Federal Constitution, and the Court of Appeals vacated and remanded, holding that the statutory scheme could not be reconciled with the North Carolina statutory scheme. Held: The North Carolina statute is pre-empted if, and insofar as, it would operate that way. The defect in §108A-57 of that provision is that it sets forth no process for determining what portion of the tort recovery represents compensation for medical expenses; instead, North Carolina has picked an arbitrary number (one-third) and by statutory command labeled that portion of a beneficiary's tort recovery as representing payment for medical care. . (a) Pre-emption is not a matter of semantics. A State may not evade the pre-emption force of federal law by resorting to creative statutory interpretation or description at odds with the statute's intended operation and effect. P.. (b) North Carolina offers no persuasive force for its argument that it is doing nothing more than what Ahlborn said it could do: Adop[ing] special rules and procedures for allocating tort settlements. A proper analysis requires consideration of what the state law in fact does, not how the litigant might choose to describe it. That reasoning controls here. North Carolina contends that its law falls within the scope of a State's traditional authority to regulate tort actions, including the amounts of damages that a party may recover. Although it does not limit tort plaintiffs' ability to recover for certain types of nonmedical damages, and does not say that medical damages are to be privileged above other damages in tort suits, all it seeks to do is to allocate the share of damages attributable to medical expenses in tort suit brought by Medicaid beneficiaries. North Carolina suggests that, even though its allocation of part of a tort recovery may be arbitrary, other methods of allocating a recovery would be just as arbitrary. In some cases a judgment or stipulation binding on all parties will allocate the plaintiff's recovery across different claims. But where no such judgment and stipulation exists, a fair allocation of such a settlement may be difficult to determine. Moreover, since the State has ample means available to allocate Medicaid beneficiaries' tort recoveries in an efficient manner that complies with federal law, there is no uncertaintyable true value of a case that should control what portions of any settlement is subject to the State third-party recovery rights. Moreover, if States are concerned that case-by-case judicial allocations will prove unwieldy, they may adopt ex ante administrative criteria to allocate medical and nonmedical expenses, provided that these criteria are backed by evidence suggesting that they are likely to yield reasonable results in the mine run of cases. But what they cannot do is what North Carolina did here, and North Carolina is entitled to deference for its arbitrary allocation of a share of the damages that it could have proved had the case gone to trial. See, e.g., National Meat Assn. v. Harris, 564 U. S. ___, ___ (2012). Insofar as the opinion letters approve of North Carolina law, they lack persuasive force. This Court has held that a proper analysis, such as those in opinion letters, like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law, must not warrant Chevron-style deference. Here, the documents are entitled to respect in proportion to their power to persuade

2013_13-461

https://www.oyez.org/cases/2013/13-461

. The Copyright Act of 1976 gives a copyright owner the “exclusive righ[t]” to “perform the copyrighted work publicly.” 17 U. S. C. §106(4). The Act’s Transmit Clause defines that exclusive right as including the right to “transmit or otherwise communicate a performance . . . of the [copyrighted] work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times.” §101. We must decide whether respondent Aereo, Inc., infringes this exclusive right by selling its subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as the programs are broadcast over the air. We conclude that it does. I A For a monthly fee, Aereo offers subscribers broadcast television programming over the Internet, virtually as the programming is being broadcast. Much of this programming is made up of copyrighted works. Aereo neither owns the copyright in those works nor holds a license from the copyright owners to perform those works publicly. Aereo’s system is made up of servers, transcoders, and thousands of dime-sized antennas housed in a central warehouse. It works roughly as follows: First, when a subscriber wants to watch a show that is currently being broadcast, he visits Aereo’s website and selects, from a list of the local programming, the show he wishes to see. Second, one of Aereo’s servers selects an antenna, which it dedicates to the use of that subscriber (and that subscriber alone) for the duration of the selected show. A server then tunes the antenna to the over-the-air broadcast carrying the show. The antenna begins to receive the broadcast, and an Aereo transcoder translates the sig-nals received into data that can be transmitted over the Internet. Third, rather than directly send the data to the subscriber, a server saves the data in a subscriber-specific folder on Aereo’s hard drive. In other words, Aereo’s system creates a subscriber-specific copy—that is, a “personal” copy—of the subscriber’s program of choice. Fourth, once several seconds of programming have been saved, Aereo’s server begins to stream the saved copy of the show to the subscriber over the Internet. (The subscriber may instead direct Aereo to stream the program at a later time, but that aspect of Aereo’s service is not before us.) The subscriber can watch the streamed program on the screen of his personal computer, tablet, smart phone, Internet-connected television, or other Internet-connected device. The streaming continues, a mere few seconds behind the over-the-air broadcast, until the subscriber has received the entire show. See A Dictionary of Computing 494 (6th ed. 2008) (defining “streaming” as “[t]he process of providing a steady flow of audio or video data so that an Internet user is able to access it as it is transmitted”). Aereo emphasizes that the data that its system streams to each subscriber are the data from his own personal copy, made from the broadcast signals received by the particular antenna allotted to him. Its system does not transmit data saved in one subscriber’s folder to any other subscriber. When two subscribers wish to watch the same program, Aereo’s system activates two separate antennas and saves two separate copies of the program in two separate folders. It then streams the show to the subscribers through two separate transmissions—each from the subscriber’s personal copy. B Petitioners are television producers, marketers, distributors, and broadcasters who own the copyrights in many of the programs that Aereo’s system streams to its subscribers. They brought suit against Aereo for copyright infringement in Federal District Court. They sought a preliminary injunction, arguing that Aereo was infringing their right to “perform” their works “publicly,” as the Transmit Clause defines those terms. The District Court denied the preliminary injunction. 874 F. Supp. 2d 373 (SDNY 2012). Relying on prior Circuit precedent, a divided panel of the Second Circuit affirmed. WNET, Thirteen v. Aereo, Inc., 712 F. 3d 676 (2013) (citing Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F. 3d 121 (2008)). In the Second Circuit’s view, Aereo does not perform publicly within the meaning of the Transmit Clause because it does not transmit “to the public.” Rather, each time Aereo streams a program to a subscriber, it sends a private transmission that is avail-able only to that subscriber. The Second Circuit denied rehearing en banc, over the dissent of two judges. WNET, Thirteen v. Aereo, Inc., 722 F. 3d 500 (2013). We granted certiorari. II This case requires us to answer two questions: First, in operating in the manner described above, does Aereo “perform” at all? And second, if so, does Aereo do so “publicly”? We address these distinct questions in turn. Does Aereo “perform”? See §106(4) (“[T]he owner of [a] copyright . . . has the exclusive righ[t] . . . to perform the copyrighted work publicly” (emphasis added)); §101 (“To perform . . . a work ‘publicly’ means [among other things] to transmit . . . a performance . . . of the work . . . to the public . . . ” (emphasis added)). Phrased another way, does Aereo “transmit . . . a performance” when a subscriber watches a show using Aereo’s system, or is it only the subscriber who transmits? In Aereo’s view, it does not perform. It does no more than supply equipment that “emulate[s] the operation of a home antenna and [digital video recorder (DVR)].” Brief for Respondent 41. Like a home antenna and DVR, Aereo’s equipment simply responds to its subscribers’ directives. So it is only the subscribers who “perform” when they use Aereo’s equipment to stream television programs to themselves. Considered alone, the language of the Act does not clearly indicate when an entity “perform[s]” (or “transmit[s]”) and when it merely supplies equipment that allows others to do so. But when read in light of its purpose, the Act is unmistakable: An entity that engages in activities like Aereo’s performs. A History makes plain that one of Congress’ primary purposes in amending the Copyright Act in 1976 was to overturn this Court’s determination that community antenna television (CATV) systems (the precursors of modern cable systems) fell outside the Act’s scope. In Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390 (1968) , the Court considered a CATV system that carried local television broadcasting, much of which was copyrighted, to its subscribers in two cities. The CATV provider placed antennas on hills above the cities and used coaxial cables to carry the signals received by the antennas to the home television sets of its subscribers. The system amplified and modulated the signals in order to improve their strength and efficiently transmit them to subscribers. A subscriber “could choose any of the . . . programs he wished to view by simply turning the knob on his own television set.” Id., at 392. The CATV provider “neither edited the programs received nor originated any programs of its own.” Ibid. Asked to decide whether the CATV provider infringed copyright holders’ exclusive right to perform their works publicly, the Court held that the provider did not “perform” at all. See 17 U. S. C. §1(c) (1964 ed.) (granting copyright holder the exclusive right to “perform . . . in public for profit” a nondramatic literary work), §1(d) (granting copyright holder the exclusive right to “perform . . . publicly” a dramatic work). The Court drew a line: “Broadcasters perform. Viewers do not perform.” 392 U. S., at 398 (footnote omitted). And a CATV provider “falls on the viewer’s side of the line.” Id., at 399. The Court reasoned that CATV providers were unlike broadcasters: “Broadcasters select the programs to be viewed; CATV systems simply carry, without editing, whatever programs they receive. Broadcasters procure programs and propagate them to the public; CATV systems receive programs that have been released to the public and carry them by private channels to additional viewers.” Id., at 400. Instead, CATV providers were more like viewers, for “the basic function [their] equipment serves is little different from that served by the equipment generally furnished by” viewers. Id., at 399. “Essentially,” the Court said, “a CATV system no more than enhances the viewer’s capac-ity to receive the broadcaster’s signals [by] provid[ing] a well-located antenna with an efficient connection to the viewer’s television set.” Ibid. Viewers do not become performers by using “amplifying equipment,” and a CATV provider should not be treated differently for providing viewers the same equipment. Id., at 398–400. In Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394 (1974) , the Court considered the copyright liability of a CATV provider that carried broadcast television programming into subscribers’ homes from hundreds of miles away. Although the Court recognized that a viewer might not be able to afford amplifying equipment that would provide access to those distant signals, it nonetheless found that the CATV provider was more like a viewer than a broadcaster. Id., at 408–409. It explained: “The reception and rechanneling of [broadcast television signals] for simultaneous viewing is essentially a viewer function, irrespective of the distance between the broadcasting station and the ultimate viewer.” Id., at 408. The Court also recognized that the CATV system exercised some measure of choice over what to transmit. But that fact did not transform the CATV system into a broadcaster. A broadcaster exercises significant creativity in choosing what to air, the Court reasoned. Id., at 410. In contrast, the CATV provider makes an initial choice about which broadcast stations to retransmit, but then “ ‘simply carr[ies], without editing, whatever programs [it] receive[s].’ ” Ibid. (quoting Fortnightly, supra, at 400 (altera-tions in original)). B In 1976 Congress amended the Copyright Act in large part to reject the Court’s holdings in Fortnightly and Teleprompter. See H. R. Rep. No. 94–1476, pp. 86–87 (1976) (hereinafter H. R. Rep.) (The 1976 amendments “completely overturned” this Court’s narrow construction of the Act in Fortnightly and Teleprompter). Congress enacted new language that erased the Court’s line between broadcaster and viewer, in respect to “perform[ing]” a work. The amended statute clarifies that to “perform” an audiovisual work means “to show its images in any sequence or to make the sounds accompanying it audible.” §101; see ibid. (defining “[a]udiovisual works” as “works that consist of a series of related images which are intrinsically intended to be shown by the use of machines . . . , together with accompanying sounds”). Under this new language, both the broadcaster and the viewer of a television program “perform,” because they both show the program’s images and make audible the program’s sounds. See H. R. Rep., at 63 (“[A] broadcasting network is performing when it transmits [a singer’s performance of a song] . . . and any individual is performing whenever he or she . . . communicates the performance by turning on a receiving set”). Congress also enacted the Transmit Clause, which specifies that an entity performs publicly when it “transmit[s] . . . a performance . . . to the public.” §101; see ibid. (defining “[t]o ‘transmit’ a performance” as “to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent”). Cable system activities, like those of the CATV systems in Fortnightly and Teleprompter, lie at the heart of the activities that Congress intended this language to cover. See H. R. Rep., at 63 (“[A] cable television system is perform-ing when it retransmits [a network] broadcast to its subscribers”); see also ibid. (“[T]he concep[t] of public performance . . . cover[s] not only the initial rendition or showing, but also any further act by which that rendition or showing is transmitted or communicated to the public”). The Clause thus makes clear that an entity that acts like a CATV system itself performs, even if when doing so, it simply enhances viewers’ ability to receive broadcast television signals. Congress further created a new section of the Act to regulate cable companies’ public performances of copyrighted works. See §111. Section 111 creates a complex, highly detailed compulsory licensing scheme that sets out the conditions, including the payment of compulsory fees, under which cable systems may retransmit broadcasts. H. R. Rep., at 88 (Section 111 is primarily “directed at the operation of cable television systems and the terms and conditions of their liability for the retransmission of copyrighted works”). Congress made these three changes to achieve a similar end: to bring the activities of cable systems within the scope of the Copyright Act. C This history makes clear that Aereo is not simply an equipment provider. Rather, Aereo, and not just its subscribers, “perform[s]” (or “transmit[s]”). Aereo’s activities are substantially similar to those of the CATV companies that Congress amended the Act to reach. See id., at 89 (“[C]able systems are commercial enterprises whose basic retransmission operations are based on the carriage of copyrighted program material”). Aereo sells a service that allows subscribers to watch television programs, many of which are copyrighted, almost as they are being broadcast. In providing this service, Aereo uses its own equipment, housed in a centralized warehouse, outside of its users’ homes. By means of its technology (antennas, transcoders, and servers), Aereo’s system “receive[s] programs that have been released to the public and carr[ies] them by private channels to additional viewers.” Fortnightly, 392 U. S., at 400. It “carr[ies] . . . whatever programs [it] receive[s],” and it offers “all the programming” of each over-the-air station it carries. Id., at 392, 400. Aereo’s equipment may serve a “viewer function”; it may enhance the viewer’s ability to receive a broadcaster’s programs. It may even emulate equipment a viewer could use at home. But the same was true of the equipment that was before the Court, and ultimately before Congress, in Fortnightly and Teleprompter. We recognize, and Aereo and the dissent emphasize, one particular difference between Aereo’s system and the cable systems at issue in Fortnightly and Teleprompter. The systems in those cases transmitted constantly; they sent continuous programming to each subscriber’s television set. In contrast, Aereo’s system remains inert until a subscriber indicates that she wants to watch a program. Only at that moment, in automatic response to the subscriber’s request, does Aereo’s system activate an antenna and begin to transmit the requested program. This is a critical difference, says the dissent. It means that Aereo’s subscribers, not Aereo, “selec[t] the copy-righted content” that is “perform[ed],” post, at 4 (opinion of Scalia, J.), and for that reason they, not Aereo, “transmit” the performance. Aereo is thus like “a copy shop that provides its patrons with a library card.” Post, at 5. A copy shop is not directly liable whenever a patron uses the shop’s machines to “reproduce” copyrighted materials found in that library. See §106(1) (“exclusive righ[t] . . . to reproduce the copyrighted work”). And by the same token, Aereo should not be directly liable whenever its patrons use its equipment to “transmit” copyrighted television programs to their screens. In our view, however, the dissent’s copy shop argument, in whatever form, makes too much out of too little. Given Aereo’s overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here. The subscribers of the Fortnightly and Teleprompter cable systems also selected what programs to display on their receiving sets. Indeed, as we explained in Fortnightly, such a subscriber “could choose any of the . . . programs he wished to view by simply turning the knob on his own television set.” 392 U. S., at 392. The same is true of an Aereo subscriber. Of course, in Fortnightly the television signals, in a sense, lurked behind the screen, ready to emerge when the subscriber turned the knob. Here the signals pursue their ordinary course of travel through the universe until today’s “turn of the knob”—a click on a website—activates machinery that intercepts and reroutes them to Aereo’s subscribers over the Internet. But this difference means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into “a copy shop that provides its patrons with a library card.” In other cases involving different kinds of service or technology providers, a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act. But the many similarities between Aereo and cable companies, considered in light of Congress’ basic purposes in amending the Copyright Act, convince us that this difference is not critical here. We conclude that Aereo is not just an equipment supplier and that Aereo “perform[s].” III Next, we must consider whether Aereo performs petitioners’ works “publicly,” within the meaning of the Transmit Clause. Under the Clause, an entity performs a work publicly when it “transmit[s] . . . a performance . . . of the work . . . to the public.” §101. Aereo denies that it satisfies this definition. It reasons as follows: First, the “performance” it “transmit[s]” is the performance created by its act of transmitting. And second, because each of these performances is capable of being received by one and only one subscriber, Aereo transmits privately, not pub-licly. Even assuming Aereo’s first argument is correct, its second does not follow. We begin with Aereo’s first argument. What performance does Aereo transmit? Under the Act, “[t]o ‘transmit’ a performance . . . is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” Ibid. And “[t]o ‘perform’ ” an audiovisual work means “to show its images in any sequence or to make the sounds accompanying it audible.” Ibid. Petitioners say Aereo transmits a prior performance of their works. Thus when Aereo retransmits a network’s prior broadcast, the underlying broadcast (itself a performance) is the performance that Aereo transmits. Aereo, as discussed above, says the performance it transmits is the new performance created by its act of transmitting. That performance comes into existence when Aereo streams the sounds and images of a broadcast program to a subscriber’s screen. We assume arguendo that Aereo’s first argument is correct. Thus, for present purposes, to transmit a performance of (at least) an audiovisual work means to communicate contemporaneously visible images and contemporaneously audible sounds of the work. Cf. United States v. American Soc. of Composers, Authors and Publishers, 627 F. 3d 64, 73 (CA2 2010) (holding that a download of a work is not a performance because the data transmitted are not “contemporaneously perceptible”). When an Aereo subscriber selects a program to watch, Aereo streams the program over the Internet to that subscriber. Aereo thereby “communicate[s]” to the subscriber, by means of a “device or process,” the work’s images and sounds. §101. And those images and sounds are contemporaneously visible and audible on the subscriber’s computer (or other Internet-connected device). So under our assumed definition, Aereo transmits a performance whenever its subscribers watch a program. But what about the Clause’s further requirement that Aereo transmit a performance “to the public”? As we have said, an Aereo subscriber receives broadcast television signals with an antenna dedicated to him alone. Aereo’s system makes from those signals a personal copy of the selected program. It streams the content of the copy to the same subscriber and to no one else. One and only one subscriber has the ability to see and hear each Aereo transmission. The fact that each transmission is to only one subscriber, in Aereo’s view, means that it does not transmit a performance “to the public.” In terms of the Act’s purposes, these differences do not distinguish Aereo’s system from cable systems, which do perform “publicly.” Viewed in terms of Congress’ regula-tory objectives, why should any of these technological differ-ences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. They do not render Aereo’s commercial objective any different from that of cable companies. Nor do they significantly alter the viewing experience of Aereo’s subscribers. Why would a subscriber who wishes to watch a television show care much whether images and sounds are delivered to his screen via a large multisubscriber antenna or one small dedicated antenna, whether they arrive instantaneously or after a few seconds’ delay, or whether they are transmitted directly or after a personal copy is made? And why, if Aereo is right, could not modern CATV systems simply continue the same commercial and consumer-oriented activities, free of copyright restrictions, provided they substitute such new technologies for old? Congress would as much have intended to protect a copyright holder from the unlicensed activities of Aereo as from those of cable companies. The text of the Clause effectuates Congress’ intent. Aereo’s argument to the contrary relies on the premise that “to transmit . . . a performance” means to make a single transmission. But the Clause suggests that an entity may transmit a performance through multiple, discrete transmissions. That is because one can “transmit” or “communicate” something through a set of actions. Thus one can transmit a message to one’s friends, irrespective of whether one sends separate identical e-mails to each friend or a single e-mail to all at once. So can an elected official communicate an idea, slogan, or speech to her constituents, regardless of whether she communicates that idea, slogan, or speech during individual phone calls to each constituent or in a public square. The fact that a singular noun (“a performance”) follows the words “to transmit” does not suggest the contrary. One can sing a song to his family, whether he sings the same song one-on-one or in front of all together. Similarly, one’s colleagues may watch a performance of a particular play—say, this season’s modern-dress version of “Measure for Measure”—whether they do so at separate or at the same showings. By the same principle, an entity may transmit a performance through one or several transmissions, where the performance is of the same work. The Transmit Clause must permit this interpretation, for it provides that one may transmit a performance to the public “whether the members of the public capable of receiving the performance . . . receive it . . . at the same time or at different times.” §101. Were the words “to transmit . . . a performance” limited to a single act of communication, members of the public could not receive the performance communicated “at different times.” Therefore, in light of the purpose and text of the Clause, we conclude that when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it transmits a performance to them regardless of the number of discrete communications it makes. We do not see how the fact that Aereo transmits via personal copies of programs could make a difference. The Act applies to transmissions “by means of any device or process.” Ibid. And retransmitting a television program using user-specific copies is a “process” of transmitting a performance. A “cop[y]” of a work is simply a “material objec[t] . . . in which a work is fixed . . . and from which the work can be perceived, reproduced, or otherwise communicated.” Ibid. So whether Aereo transmits from the same or separate copies, it performs the same work; it shows the same images and makes audible the same sounds. Therefore, when Aereo streams the same television program to multiple subscribers, it “transmit[s] . . . a performance” to all of them. Moreover, the subscribers to whom Aereo transmits television programs constitute “the public.” Aereo communicates the same contemporaneously perceptible imagesand sounds to a large number of people who are unre-lated and unknown to each other. This matters because, although the Act does not define “the public,” it specifies that an entity performs publicly when it performs at “any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” Ibid. The Act thereby suggests that “the public” consists of a large group of people outside of a family and friends. Neither the record nor Aereo suggests that Aereo’s subscribers receive performances in their capacities as owners or possessors of the underlying works. This is relevant because when an entity performs to a set of people, whether they constitute “the public” often depends upon their relationship to the underlying work. When, for example, a valet parking attendant returns cars to their drivers, we would not say that the parking service provides cars “to the public.” We would say that it provides the cars to their owners. We would say that a car dealership, on the other hand, does provide cars to the public, for it sells cars to individuals who lack a pre-existing relationship to the cars. Similarly, an entity that transmits a performance to individuals in their capacities as owners or possessors does not perform to “the public,” whereas an entity like Aereo that transmits to large numbers of paying subscribers who lack any prior relationship to the works does so perform. Finally, we note that Aereo’s subscribers may receive the same programs at different times and locations. This fact does not help Aereo, however, for the Transmit Clause expressly provides that an entity may perform publicly “whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times.” Ibid. In other words, “the public” need not be situated together, spatially or temporally. For these reasons, we conclude that Aereo transmits a performance of petitioners’ copyrighted works to the public, within the meaning of the Transmit Clause. IV Aereo and many of its supporting amici argue that to apply the Transmit Clause to Aereo’s conduct will impose copyright liability on other technologies, including new technologies, that Congress could not possibly have wanted to reach. We agree that Congress, while intending the Transmit Clause to apply broadly to cable companies and their equivalents, did not intend to discourage or to control the emergence or use of different kinds of technologies. But we do not believe that our limited holding today will have that effect. For one thing, the history of cable broadcast transmissions that led to the enactment of the Transmit Clause informs our conclusion that Aereo “perform[s],” but it does not determine whether different kinds of providers in different contexts also “perform.” For another, an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work. See Brief for Respondent 31 (“[I]f a distributor . . . sells [multiple copies of a digital video disc] by mail to consumers, . . . [its] distribution of the DVDs merely makes it possible for the recipients to perform the work themselves—it is not a ‘device or process’ by which the distributor publicly performs the work” (emphasis in original)). Further, we have interpreted the term “the public” to apply to a group of individuals acting as ordinary members of the public who pay primarily to watch broadcast television programs, many of which are copyrighted. We have said that it does not extend to those who act as owners or possessors of the relevant product. And we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content. See Brief for United States as Amicus Curiae 31 (distinguishing cloud-based storage services because they “offer consumers more numerous and convenient means of playing back copies that the consumers have already lawfully acquired” (emphasis in original)). In addition, an entity does not trans-mit to the public if it does not transmit to a substantial number of people outside of a family and its social circle. We also note that courts often apply a statute’s highly general language in light of the statute’s basic purposes. Finally, the doctrine of “fair use” can help to prevent inappropriate or inequitable applications of the Clause. See Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984) . We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us. We agree with the Solicitor General that “[q]uestions involving cloud computing, [remote storage] DVRs, and other novel issues not before the Court, as to which ‘Congress has not plainly marked [the] course,’ should await a case in which they are squarely presented.” Brief for United States as Amicus Curiae 34 (quoting Sony, supra, at 431 (alteration in original)). And we note that, to the extent commercial actors or other interested entities may be concerned with the relationship between the development and use of such technologies and the Copyright Act, they are of course free to seek action from Congress. Cf. Digital Millennium Copyright Act, 17 U. S. C. §512. * * * In sum, having considered the details of Aereo’s practices, we find them highly similar to those of the CATV systems in Fortnightly and Teleprompter. And those are activities that the 1976 amendments sought to bring within the scope of the Copyright Act. Insofar as there are differences, those differences concern not the nature of the service that Aereo provides so much as the technological manner in which it provides the service. We conclude that those differences are not adequate to place Aereo’s activities outside the scope of the Act. For these reasons, we conclude that Aereo “perform[s]” petitioners’ copyrighted works “publicly,” as those terms are defined by the Transmit Clause. We therefore reverse the contrary judgment of the Court of Appeals, and we remand the case for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus AMERICAN BROADCASTING COS., INC., et al. v. AEREO, INC., fka BAMBOOM LABS, INC. certiorari to the united states court of appeals for the second circuit No. 13–461. Argued April 22, 2014—Decided June 25, 2014 The Copyright Act of 1976 gives a copyright owner the “exclusive righ[t]” to “perform the copyrighted work publicly.” 17 U. S. C. §106(4). The Act’s Transmit Clause defines that exclusive right to include the right to “transmit or otherwise communicate a performance . . . of the [copyrighted] work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times.” §101. Respondent Aereo, Inc., sells a service that allows its subscribers to watch television programs over the Internet at about the same time as the programs are broadcast over the air. When a subscriber wants to watch a show that is currently airing, he selects the show from a menu on Aereo’s website. Aereo’s system, which consists of thousands of small antennas and other equipment housed in a centralized warehouse, responds roughly as follows: A server tunes an antenna, which is dedicated to the use of one subscriber alone, to the broadcast carrying the selected show. A transcoder translates the signals received by the antenna into data that can be transmitted over the Internet. A server saves the data in a subscriber-specific folder on Aereo’s hard drive and begins streaming the show to the subscriber’s screen once several seconds of programming have been saved. The streaming continues, a few seconds behind the over-the-air broadcast, until the subscriber has received the entire show. Petitioners, who are television producers, marketers, distributors, and broadcasters that own the copyrights in many of the programs that Aereo streams, sued Aereo for copyright infringement. They sought a preliminary injunction, arguing that Aereo was infringing their right to “perform” their copyrighted works “publicly.” The District Court denied the preliminary injunction, and the Second Circuit affirmed. Held: Aereo performs petitioners’ works publicly within the meaning of the Transmit Clause. . (a) Aereo “perform[s].” It does not merely supply equipment that allows others to do so. . (1) One of Congress’ primary purposes in amending the Copyright Act in 1976 was to overturn this Court’s holdings that the activities of community antenna television (CATV) providers fell outside the Act’s scope. In Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, the Court determined that a CATV provider was more like a viewer than a broadcaster, because its system “no more than enhances the viewer’s capacity to receive the broadcaster’s signals [by] provid[ing] a well-located antenna with an efficient connection to the viewer’s television set.” Id., at 399. Therefore, the Court concluded, a CATV provider did not perform publicly. The Court reached the same determination in respect to a CATV provider that retransmitted signals from hundreds of miles away in Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394. “The reception and rechanneling of [broadcast television signals] for simultaneous viewing is essentially a viewer function, irrespective of the distance between the broadcasting station and the ultimate viewer,” the Court said. Id., at 408. . (2) In 1976, Congress amended the Copyright Act in large part to reject the Fortnightly and Teleprompter holdings. The Act now clarifies that to “perform” an audiovisual work means “to show its images in any sequence or to make the sounds accompanying it audible.” §101. Thus, both the broadcaster and the viewer “perform,” because they both show a television program’s images and make audible the program’s sounds. Congress also enacted the Transmit Clause, which specifies that an entity performs when it “transmit[s] . . . a performance . . . to the public.” Ibid. The Clause makes clear that an entity that acts like a CATV system itself performs, even when it simply enhances viewers’ ability to receive broadcast television signals. Congress further created a complex licensing scheme that sets out the conditions, including the payment of compulsory fees, under which cable systems may retransmit broadcasts to the public. §111. Congress made all three of these changes to bring cable system activities within the Copyright Act’s scope. . (3) Because Aereo’s activities are substantially similar to those of the CATV companies that Congress amended the Act to reach, Aereo is not simply an equipment provider. Aereo sells a service that allows subscribers to watch television programs, many of which are copyrighted, virtually as they are being broadcast. Aereo uses its own equipment, housed in a centralized warehouse, outside of its users’ homes. By means of its technology, Aereo’s system “receive[s] programs that have been released to the public and carr[ies] them by private channels to additional viewers.” Fortnightly, supra, at 400. This Court recognizes one particular difference between Aereo’s system and the cable systems at issue in Fortnightly and Teleprompter: The systems in those cases transmitted constantly, whereas Aereo’s system remains inert until a subscriber indicates that she wants to watch a program. In other cases involving different kinds of service or technology providers, a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act. But given Aereo’s overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here. . (b) Aereo also performs petitioners’ works “publicly.” Under the Clause, an entity performs a work publicly when it “transmit[s] . . . a per-formance . . . of the work . . . to the public.” §101. What performance, if any, does Aereo transmit? Petitioners say Aereo transmits a prior performance of their works, whereas Aereo says the performance it transmits is the new performance created by its act of transmitting. This Court assumes arguendo that Aereo is correct and thus assumes, for present purposes, that to transmit a performance of an audiovisual work means to communicate contemporaneously visible images and contemporaneously audible sounds of the work. Under the Court’s assumed definition, Aereo transmits a performance whenever its subscribers watch a program. What about the Clause’s further requirement that Aereo transmit a performance “to the public”? Aereo claims that because it transmits from user-specific copies, using individually-assigned antennas, and because each transmission is available to only one subscriber, it does not transmit a performance “to the public.” Viewed in terms of Congress’ regulatory objectives, these behind-the-scenes technological differences do not distinguish Aereo’s system from cable systems, which do perform publicly. Congress would as much have intended to protect a copyright holder from the unlicensed activities of Aereo as from those of cable companies. The text of the Clause effectuates Congress’ intent. Under the Clause, an entity may transmit a performance through multiple transmissions, where the performance is of the same work. Thus when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it “transmit[s] . . . a performance” to them, irrespective of the number of discrete communications it makes and irrespective of whether it transmits using a single copy of the work or, as Aereo does, using an individual personal copy for each viewer. Moreover, the subscribers to whom Aereo transmits constitute “the public” under the Act. This is because Aereo communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other. In addition, neither the record nor Aereo suggests that Aereo’s subscribers receive performances in their capacities as owners or possessors of the underlying works. This is relevant because when an entity performs to a set of people, whether they constitute “the public” often depends upon their relationship to the underlying work. Finally, the statute makes clear that the fact that Aereo’s subscribers may receive the same programs at different times and locations is of no consequence. Aereo transmits a performance of petitioners’ works “to the public.” . (c) Given the limited nature of this holding, the Court does not believe its decision will discourage the emergence or use of different kinds of technologies. . 712 F.3d 676, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined.

Respondent Aereo, a service that allows subscribers to watch television programs over the Internet at about the same time as the programs are broadcast over the air, does not infringe its exclusive right under the Copyright Act of 1976 (Act) to perform the copyrighted work publicly. The Act defines that exclusive right as including the right to transmit or otherwise communicate a performance... of the [copyrighted] work to the public, by means of any device or process, whether the members of the public capable of receiving the performance receive it in the same place or in separate places and at the same times or at different times. Petitioners, television producers, distributors, and broadcasters who own the copyrights in many of the programs that Aereo streams to its subscribers, brought suit against Aereo for copyright infringement in Federal District Court. They sought a preliminary injunction, arguing that respondent was infringing their right to have their works broadcast to their subscribers. The District Court denied the injunction, and the Court of Appeals affirmed. Held: 1. In operating in the manner described above, respondent does not perform at all. It does no more than supply equipment that emulates the operation of a home antenna and a digital video recorder (DVR). But when read in light of its purpose to overturn this Court's determination that community antenna television (CATV) systems (the precursors of modern cable systems) fell outside the Act, the Act is unmistakable: An entity that engages in activities like respondent performs. . 2. When an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it transmits a performance to them regardless of the number of discrete communications it makes. Here, Aereo uses its own equipment, housed in a centralized warehouse, outside of its users' homes. By means of its technology (antennas, transcoders, and servers), Aereo transmits the signal to the over-the-air broadcast carrying the show. Aereo emphasizes that the data that it streams to each subscriber are the data from his own personal copy, made from the broadcast signals received by the particular antenna allotted to him. Its system does not transmit data saved in one subscriber's folder to any other subscriber. When two subscribers wish to watch the same program, it activates two separate antennas and saves two separate copies of the program in two separate folders, and then streams the show to the subscribers through two separate transmissions (each from the subscriber's personal copy). The stream continues, a mere seconds behind the broadcast, until the subscriber has received the entire show. (a) The Act makes clear that an entity performs publicly when it acts publicly. Congress intended the Clause to apply broadly to cable companies and their equivalents, but did not intend to discourage or control the emergence or use of different kinds of technologies that Congress could not possibly have wanted to reach. In light of Congress' regula-tory objectives, why should any of these technological differ-ences matter? These technological differences do not distinguish Aereo from cable systems, which do perform publicly. Cf. Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390. Moreover, a copy shop is not directly liable whenever a patron uses Aereo's machines to produce copyrighted materials found in that library. And Aereo should not be directly liable when its patrons use its equipment to transmit copyrighted television programs to their screens. This matters because, although the Act does not define the term public, it does define the public. One and only one subscriber has the ability to see and hear each Aereo transmission. Neither the record nor Aereo suggests that subscribers receive performances in their capacities as owners or possessors of the underlying works. P.. (b) Viewed in terms of Congress, supra, the technological differences between Aereo and traditional cable companies do not make a critical difference here, since the subscribers to whom Aereo transmit television programs constitute the public within the meaning of the Act. Nor does the fact that a subscriber receives a personal copy of the selected program, whereas the subscriber receives the copy to the same subscriber and to no one else, make the difference here. Similarly, since an entity transmits through multiple, discrete transmissions, each of these performances is capable of being received by one and only one subscriber, respondent transmits privately, not pub-licly. Pp. 442 U.S. 422-443. 722 F. 3d 500 (CA9 2012), reversed and remanded. REHNQUIST, C.J., affirmed.

2013_12-1493

https://www.oyez.org/cases/2013/12-1493

. Before a federally licensed firearms dealer may sell a gun, the would-be purchaser must provide certain per-sonal information, show photo identification, and pass a background check. To ensure the accuracy of those submissions, a federal statute imposes criminal penalties on any person who, in connection with a firearm’s acquisition, makes false statements about “any fact material to the lawfulness of the sale.” 18 U. S. C. §922(a)(6). In this case, we consider how that law applies to a so-called straw purchaser—namely, a person who buys a gun on someone else’s behalf while falsely claiming that it is for himself. We hold that such a misrepresentation is punishable under the statute, whether or not the true buyer could have purchased the gun without the straw. I A Federal law has for over 40 years regulated sales by licensed firearms dealers, principally to prevent guns from falling into the wrong hands. See Gun Control Act of 1968, 18 U. S. C. §921 et seq. Under §922(g), certain classes of people—felons, drug addicts, and the mentally ill, tolist a few—may not purchase or possess any firearm. And to ensure they do not, §922(d) forbids a licensed dealer from selling a gun to anyone it knows, or has reasonable cause to believe, is such a prohibited buyer. See Huddleston v. United States, 415 U. S. 814, 825 (1974) (“[T]he focus of the federal scheme,” in controlling access to weapons, “is the federally licensed firearms dealer”). The statute establishes a detailed scheme to enable the dealer to verify, at the point of sale, whether a potential buyer may lawfully own a gun. Section 922(c) brings the would-be purchaser onto the dealer’s “business premises” by prohibiting, except in limited circumstances, the sale of a firearm “to a person who does not appear in person” at that location. Other provisions then require the dealer to check and make use of certain identifying information received from the buyer. Before completing any sale, the dealer must “verif[y] the identity of the transferee by examining a valid identification document” bearing a photograph. §922(t)(1)(C). In addition, the dealer must procure the buyer’s “name, age, and place of residence.” §922(b)(5). And finally, the dealer must (with limited exceptions not at issue here[1]) submit that informationto the National Instant Background Check System (NICS) to determine whether the potential purchaser is forany reason disqualified from owning a firearm. See §§922(t)(1)(A)–(B). The statute further insists that the dealer keep certain records, to enable federal authorities both to enforce the law’s verification measures and to trace firearms used in crimes. See H. R. Rep. No. 1577, 90th Cong., 2d Sess., 14 (1968). A dealer must maintain the identifying information mentioned above (i.e., name, age, and residence) in its permanent files. See §922(b)(5). In addition, the dealer must keep “such records of . . . sale[ ] or other disposi-tion of firearms . . . as the Attorney General may by regulations prescribe.” §923(g)(1)(A). And the Attorney General (or his designee) may obtain and inspect any of those records, “in the course of a bona fide criminal investigation,” to “determin[e] the disposition of 1 or more firearms.” §923(g)(7). To implement all those statutory requirements, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) developed Form 4473 for gun sales. See Supp. App. 1–6. The part of that form to be completed by the buyer requests his name, birth date, and address, as well as certain other identifying information (for example, his height, weight, and race). The form further lists all the factors disqualifying a person from gun ownership, and asks the would-be buyer whether any of them apply (e.g., “[h]ave you ever been convicted . . . of a felony?”). Id., at 1. Most important here, Question 11.a. asks (with bolded emphasis appearing on the form itself): “Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.” Ibid. The accompanying instructions for that question provide: “Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourselfor otherwise acquiring the firearm for yourself . . . . You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAM-PLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer “NO” to question 11.a.” Id., at 4. After responding to this and other questions, the customer must sign a certification declaring his answers “true, correct and complete.” Id., at 2. That certification provides that the signator “understand[s] that making any false . . . statement” respecting the transaction—and, particularly, “answering ‘yes’ to question 11.a. if [he is] not the actual buyer”—is a crime “punishable as a felony under Federal law.” Ibid. (bold typeface deleted). Two statutory provisions, each designed to ensure that the dealer can rely on the truthfulness of the buyer’s dis-closures in carrying out its obligations, criminalize certain false statements about firearms transactions. First and foremost, §922(a)(6), provides as follows: “It shall be unlawful . . . for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from [a licensed dealer] knowingly to make any false or fictitious oral or written statement . . . , intended or likely to deceive such [dealer] with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.” That provision helps make certain that a dealer will receive truthful information as to any matter relevant to a gun sale’s legality. In addition, §924(a)(1)(A) prohibits “knowingly mak[ing] any false statement or representation with respect to the information required by this chapter to be kept in the records” of a federally licensed gun dealer. The question in this case is whether, as the ATF declares in Form 4473’s certification, those statutory provisions criminalize a false answer to Question 11.a.—that is, a customer’s statement that he is the “actual transferee/buyer,” purchasing a firearm for himself, when in fact he is a straw purchaser, buying the gun on someone else’s behalf. B The petitioner here is Bruce Abramski, a former police officer who offered to buy a Glock 19 handgun for his uncle, Angel Alvarez. (Abramski thought he could get the gun for a discount by showing his old police identification, though the Government contends that because he had been fired from his job two years earlier, he was no longer authorized to use that card.) Accepting his nephew’s offer, Alvarez sent Abramski a check for $400 with “Glock 19 handgun” written on the memo line. Two days later, Abramski went to Town Police Supply, a federally licensed firearms dealer, to make the purchase. There, he filled out Form 4473, falsely checking “Yes” in reply to Question 11.a.—that is, asserting he was the “actual transferee/buyer” when, according to the form’s clear definition, he was not. He also signed the requisite certification, acknowledging his understanding that a false answer to Question 11.a. is a federal crime. After Abramski’s name cleared the NICS background check, the dealer sold him the Glock. Abramski then deposited the $400 check in his bank account, transferred the gun to Alvarez, and got back a receipt. Federal agents found that receipt while executing a search warrant at Abramski’s home after he became a suspect in a different crime. A grand jury indicted Abramski for violating §§922(a)(6) and 924(a)(1)(A) by falsely affirming in his response to Question 11.a. that he was the Glock’s actual buyer. Abramski moved to dismiss both charges. He argued that his misrepresentation on Question 11.a. was not “material to the lawfulness of the sale” under §922(a)(6) because Alvarez was legally eligible to own a gun. And he claimed that the false statement did not violate §924(a)(1)(A) because a buyer’s response to Question 11.a. is not “required . . . to be kept in the records” of a gun dealer. After the District Court denied those motions, see 778 F. Supp. 2d 678 (WD Va. 2011), Abramski entered a conditional guilty plea, reserving his right to challenge the rulings. The District Court then sentenced him to five years of probation on each count, running concurrently. The Court of Appeals for the Fourth Circuit affirmed the convictions. 706 F. 3d 307 (2013). It noted a division among appellate courts on the question Abramski raised about §922(a)(6)’s materiality requirement: Of three courts to have addressed the issue, one agreed with Abramski that a misrepresentation on Question 11.a. is immaterial if “the true purchaser [here, Alvarez] can lawfully purchase a firearm directly.” Id., at 315 (quoting United States v. Polk, 118 F. 3d 286, 295 (CA5 1997)).[2] The Fourth Circuit, however, thought the majority position correct: “[T]he identity of the actual purchaser of a firearm is a constant that is always material to the lawfulness of a firearm acquisition under §922(a)(6).” 706 F. 3d, at 316. The court also held that Abramski’s conviction under §924(a)(1)(A) was valid, finding that the statute required a dealer to maintain the information at issue in its records. Id., at 317. We granted certiorari, 571 U. S. ___ (2013), principally to resolve the Circuit split about §922(a)(6). In this Court, Abramski renews his claim that a false answer to Question 11.a. is immaterial if the true buyer is legally eligible to purchase a firearm. But Abramski now focuses on a new and more ambitious argument, which he concedes no court has previously accepted. See Brief for Petitioner i.[3] In brief, he alleges that a false response to Question 11.a. is never material to a gun sale’s legality, whether or not the actual buyer is eligible to own a gun. We begin with that fundamental question, next turn to what has become Abramski’s back-up argument under §922(a)(6), and fi-nally consider the relatively easy question pertaining to §924(A)(1)(a)’s separate false-statement prohibition. On each score, we affirm Abramski’s conviction. II Abramski’s broad theory (mostly echoed by the dissent) is that federal gun law simply does not care about arrangements involving straw purchasers: So long as the person at the counter is eligible to own a gun, the sale to him is legal under the statute. That is true, Abramski contends, irrespective of any agreement that person has made to purchase the firearm on behalf of someone else—including someone who cannot lawfully buy or own a gun himself. Accordingly, Abramski concludes, his “false statement that he was the [Glock 19’s] ‘actual buyer,’ ” as that term was “defined in Question 11.a., was not material”—indeed, was utterly irrelevant—“to the lawfulness ofthe sale.” Id., at 31 (emphasis deleted); see also post, at 4 (opinion of Scalia, J.). In essence, he claims, Town Police Supply could legally have sold the gun to him even if had truthfully answered Question 11.a. by disclosing that he was a straw—because, again, all the federal firearms law cares about is whether the individual standing at the dealer’s counter meets the requirements to buy a gun.[4] At its core, that argument relies on one true fact: Fed-eral gun law regulates licensed dealers’ transactions with “persons” or “transferees,” without specifically referencing straw purchasers. Section 922(d), for example, bars a dealer from “sell[ing] or otherwise dispos[ing] of” a firearm to any “person” who falls within a prohibited category—felons, drug addicts, the mentally ill, and so forth. See supra, at 1–2; see also §922(b)(5) (before selling a gun to a “person,” the dealer must take down his name, age, and residence); §922(t)(1) (before selling a gun to a “person,” the dealer must run a background check). Similarly, §922(t)(1)(C) requires the dealer to verify the identity of the “transferee” by checking a valid photo ID. See supra, at 2; see also §922(c) (spelling out circumstances in which a “transferee” may buy a gun without appearing at the dealer’s premises). Abramski contends that Congress’s use of such language alone, sans any mention of “straw purchasers” or “actual buyers,” shows that “[i]t is not illegal to buy a gun for someone else.” Brief for Petitioner 15–16; Reply Brief 1; see also post, at 2–6. But that language merely raises, rather than answers, the critical question: In a straw purchase, who is the “person” or “transferee” whom federal gun law addresses? Is that “person” the middleman buying a firearm on someone else’s behalf (often because the ultimate recipient could not buy it himself, or wants to camouflage the transaction)? Or is that “person” instead the individual really paying for the gun and meant to take possession of it upon completion of the purchase? Is it the conduit at the counter, or the gun’s intended owner?[5] In answering that inquiry, we must (as usual) interpret the relevant words not in a vacuum, but with reference to the statutory context, “structure, history, and purpose.” Maracich v. Spears, 570 U. S. ___, ___ (2013) (slip op., at 26). All those tools of divining meaning—not to mention common sense, which is a fortunate (though not inevitable) side-benefit of construing statutory terms fairly—demonstrate that §922, in regulating licensed dealers’ gun sales, looks through the straw to the actual buyer.[6] The overarching reason is that Abramski’s reading would undermine—indeed, for all important purposes, would virtually repeal—the gun law’s core provisions.[7] As noted earlier, the statute establishes an elaborate system to verify a would-be gun purchaser’s identity and check on his background. See supra, at 2. It also requires that the information so gathered go into a dealer’s permanent records. See supra, at 2–3. The twin goals of this comprehensive scheme are to keep guns out of the hands of criminals and others who should not have them, and to assist law enforcement authorities in investigating serious crimes. See Huddleston, 415 U. S., at 824; supra, at 2–3. And no part of that scheme would work if the statute turned a blind eye to straw purchases—if, in other words, the law addressed not the substance of a transaction, but only empty formalities. To see why, consider what happens in a typical straw purchase. A felon or other person who cannot buy or own a gun still wants to obtain one. (Or, alternatively, a person who could legally buy a firearm wants to conceal his purchase, maybe so he can use the gun for criminal purposes without fear that police officers will later trace it to him.) Accordingly, the prospective buyer enlists an intermediary to help him accomplish his illegal aim. Perhaps he conscripts a loyal friend or family member; perhaps more often, he hires a stranger to purchase the gun for a price. The actual purchaser might even accompany the straw to the gun shop, instruct him which firearm to buy, give him the money to pay at the counter, and take possession as they walk out the door. See, e.g., United States v. Bowen, 207 Fed. Appx. 727, 729 (CA7 2006) (describing a straw purchase along those lines); United States v. Paye, 129 Fed. Appx. 567, 570 (CA11 2005) (per curiam) (same). What the true buyer would not do—what he would leave to the straw, who possesses the gun for all of a minute—is give his identifying information to the dealer and submit himself to a background check. How many of the statute’s provisions does that scenario—the lawful result of Abramski’s (and the dissent’s) reading of “transferee” and “person”—render meaningless? Start with the parts of §922 enabling a dealer to verify whether a buyer is legally eligible to own a firearm. That task, as noted earlier, begins with identification—requesting the name, address, and age of the potential purchaser and checking his photo ID. See §§922(b)(5), (t)(1)(C); supra, at 2. And that identification in turn permits a background check: The dealer runs the purchaser’s name through the NICS database to discover whether he is, for example, a felon, drug addict, or mentally ill person. See §§922(d), (t)(1); supra, at 2. All those provisions are designed to accomplish what this Court has previously termed Congress’s “principal purpose” in enacting the statute—“to curb crime by keeping ‘firearms out of the hands of those not legally entitled to possess them.’ ” Huddleston, 415 U. S., at 824 (quoting S. Rep. No. 1501, 90th Cong., 2d Sess. 22 (1968)). But under Abramski’s reading, the statutory terms would be utterly ineffectual, because the identification and background check would be of the wrong person. The provisions would evaluate the eligibility of mere conduits, while allowing every criminal (and drug addict and so forth) to escape that assessment and walk away with a weapon. Similarly, Abramski’s view would defeat the point of §922(c), which tightly restricts the sale of guns “to a person who does not appear in person at the licensee’s business premises.” See supra, at 2. Only a narrow class of prospective buyers may ever purchase a gun from afar—primarily, individuals who have already had their eligibility to own a firearm verified by state law enforcement officials with access to the NICS database. See 27 CFR §478.96(b) (2014), 18 U. S. C. §922(t)(3); n. 1, supra. And even when an individual fits within that category, he still must submit to the dealer a sworn statement that he can lawfully own a gun, as well as provide the name and address of the principal law enforcement officer in his community. See §922(c)(1). The dealer then has to forward notice of the sale to that officer, in order to allow law enforcement authorities to investigate the legality of the sale and, if necessary, call a stop to it. See §§922(c)(2)–(3). The provision thus prevents remote sales except to a small class of buyers subject to extraordinary procedures—again, to ensure effective verification of a potential purchaser’s eligibility. Yet on Abramski’s view, a person could easily bypass the scheme, purchasing a gun without ever leaving his home by dispatching to a gun store a hired deliveryman. Indeed, if Abramski were right, we see no reason why anyone (and certainly anyone with less-than-pure motives) would put himself through the procedures laid out in §922(c): Deliverymen, after all, are not so hard to come by. And likewise, the statute’s record-keeping provisions would serve little purpose if the records kept were of nominal rather than real buyers. As noted earlier, dealers must store, and law enforcement officers may obtain, information about a gun buyer’s identity. See §§922(b)(5), 923(g); supra, at 3. That information helps to fight serious crime. When police officers retrieve a gun at a crime scene, they can trace it to the buyer and consider him as a suspect. See National Shooting Sports Foundation, Inc. v. Jones, 716 F. 3d 200, 204 (CADC 2013) (describing law enforcement’s use of firearm tracing). Too, the required records enable dealers to identify certain suspicious pur-chasing trends, which they then must report to federal authorities. See §923(g)(3) (imposing a reporting obligation when a person buys multiple handguns within five days). But once again, those provisions can serve their objective only if the records point to the person who took actual control of the gun(s). Otherwise, the police will at most learn the identity of an intermediary, who could not have been responsible for the gun’s use and might know next to nothing about the actual buyer. See, e.g., United States v. Juarez, 626 F. 3d 246, 249 (CA5 2010) (straw purchaser bought military-style assault rifles, later found among Mexican gang members, for a buyer known “only as ‘El Mano’ ”). Abramski’s view would thus render the required records close to useless for aiding law enforcement: Putting true numbskulls to one side, anyone purchasing a gun for criminal purposes would avoid leaving a paper trail by the simple expedient of hiring a straw. To sum up so far: All the prerequisites for buying a gun described above refer to a “person” or “transferee.” Read Abramski’s way (“the man at the counter”), those terms deny effect to the regulatory scheme, as criminals could always use straw purchasers to evade the law.[8] Read the other way (“the man getting, and always meant to get, the firearm”), those terms give effect to the statutory provi-sions, allowing them to accomplish their manifest objects. That alone provides more than sufficient reason to understand “person” and “transferee” as referring not to the fictitious but to the real buyer. And other language in §922 confirms that construction, by evincing Congress’s concern with the practical realities, rather than the legal niceties, of firearms transactions. For example, §922(a)(6) itself bars material misrepresentations “in connection with the acquisition,” and not just the purchase, of a firearm. That broader word, we have previously held, does not focus on “legal title”—let alone legal title for a few short moments, until another, always intended transfer occurs. Huddleston, 415 U. S., at 820. Instead, the term signifies “com[ing] into possession, control, or power of disposal,” as the actual buyer in a straw purchase does. Ibid. Similarly, we have reasoned that such a substance-over-form approach draws support from the statute’s repeated references to “the sale or other disposition” of a firearm. §922(a)(6); see §922(d) (making it unlawful to “sell or otherwise dispose of” a gun to a prohibited person). That term, we have stated, “was aimed at providing maximum coverage.” Id., at 826–827. We think such expansive language inconsistent with Abramski’s view of the statute, which would stare myopically at the nominal buyer while remaining blind to the person exiting the transaction with control of the gun. Finally, our reading of §922 comports with courts’ standard practice, evident in many legal spheres and presumably known to Congress, of ignoring artifice when identifying the parties to a transaction. In United States v. One 1936 Model Ford V-8 Deluxe Coach, Commercial Credit Co., 307 U. S. 219 (1939) , for example, we considered the operation of a statute requiring forfeiture of any interest in property that was used to violate prohibition laws, except if acquired in good faith. There, a straw purchaser had bought a car in his name but with his brother’s money, and transferred it to the brother—a known bootlegger—right after driving it off the lot. See id., at 222–223. The Court held the finance company’s lien on the car non-forfeitable because the company had no hint that the straw was a straw—that his brother would in fact be the owner. See id., at 224. But had the com-pany known, the Court made clear, a different result would have obtained: The company could not have relied on the formalities of the sale to the “ ‘straw’ purchaser” when it knew that the “real owner and purchaser” of the car was someone different. Id., at 223–224. We have similarly emphasized the need in other contexts, involving both criminal and civil penalties, to look through a transaction’s nominal parties to its true participants. See, e.g., American Needle, Inc. v. National Football League, 560 U. S. 183, 193 (2010) (focusing on “substance rather than form” in assessing when entities are distinct enough to be capable of conspiring to violate the antitrust laws); Gregory v. Helvering, 293 U. S. 465, 470 (1935) (disregarding an intermediary shell corporation created to avoid taxes because doing otherwise would “exalt artifice above reality”). We do no more than that here in holding, consistentwith §922’s text, structure, and purpose, that using a straw does not enable evasion of the firearms law. Abramski, along with the dissent, objects that such action is no circumvention—that Congress made an intentional choice, born of “political compromise,” to limit the gun law’s compass to the person at the counter, even if merely acting on another’s behalf. Reply Brief 11; post, at 10–11. As evidence, Abramski states that the statute does not regulate beyond the initial point of sale. Because the law mostly addresses sales made by licensed dealers, a purchaser can (within wide limits) subsequently decide to resell his gun to another private party. See Reply Brief 11. And similarly, Abramski says, a purchaser can buy a gun for someone else as a gift. See Brief for Petitioner 26–27, n. 3. Abramski lumps in the same category the transfer of a gun from a nominal to a real buyer—as something, like a later resale or gift, meant to fall outside the statute’s (purported) standing-in-front-of-the-gun-dealer scope. See Reply Brief 13; see also post, at 7–9. But Abramski and the dissent draw the wrong conclusion from their observations about resales and gifts. Yes, Congress decided to regulate dealers’ sales, while leaving the secondary market for guns largely untouched. As we noted in Huddleston, Congress chose to make the dealer the “principal agent of federal enforcement” in “restricting [criminals’] access to firearms.” 415 U. S., at 824. And yes, that choice (like pretty much everything Congress does) was surely a result of compromise. But no, straw arrangements are not a part of the secondary market, separate and apart from the dealer’s sale. In claiming as much, Abramski merely repeats his mistaken assumption that the “person” who acquires a gun from a dealer in a case like this one is the straw, rather than the individual who has made a prior arrangement to pay for, take possession of, own, and use that part of the dealer’s stock. For all the reasons we have already given, that is not a plausible construction of a statute mandating that the dealer identify and run a background check on the person to whom it is (really, not fictitiously) selling a gun. See supra, at 9–15. The individual who sends a straw to a gun store to buy a firearm is transacting with the dealer, in every way but the most formal; and that distinguishes such a person from one who buys a gun, or receives a gun as a gift, from a private party.[9] The line Congress drew between those who acquire guns from dealers and those who get them as gifts or on the secondary market, we suspect, reflects a host of things, including administrative simplicity and a view about where the most problematic firearm transactions—like criminal organizations’ bulk gun purchases—typically occur. But whatever the reason, the scarcity of controls in the secondary market provides no reason to gut the robust measures Congress enacted at the point of sale. Abramski claims further support for his argument from Congress’s decision in 1986 to amend §922(d) to prohibit a private party (and not just, as originally enacted, a licensed dealer) from selling a gun to someone he knows or reasonably should know cannot legally possess one. See Firearm Owners’ Protection Act, §102(5)(A), 100 Stat. 451–452. According to Abramski, the revised §922(d) should be understood as Congress’s exclusive response to the potential dangers arising from straw purchases. See Brief for Petitioner 26–27. The amendment shows, he claims, that “Congress chose to address this perceived problem in a way other than” by imposing liability under §922(a)(6) on a straw who tells a licensed dealer that he is the firearm’s actual buyer. Reply Brief 14, n. 2. But Congress’s amendment of §922(d) says nothing about §922(a)(6)’s application to straw purchasers. In en-acting that amendment, Congress left §922(a)(6) just asit was, undercutting any suggestion that Congress some-how intended to contract that provision’s reach. The amendment instead performed a different function: Rather than ensuring that a licensed dealer receives truthful information, it extended a minimal form of regulation to the secondary market. The revised §922(d) prevents a private person from knowingly selling a gun to an ineligible owner no matter when or how he acquired the weapon: It thus applies not just to a straw purchaser, but to an individual who bought a gun for himself and later decided to resell it. At the same time, §922(d) has nothing to say about a raft of cases §922(a)(6) covers, including all the (many) straw purchases in which the frontman does not know that the actual buyer is ineligible. See supra, at 13. Thus, §922(d) could not serve as an effective substitute for §922(a)(6). And the mere potential for some transactions to run afoul of both prohibitions gives no cause to read §922(d) as limiting §922(a)(6) (or vice versa). See, e.g., United States v. Batchelder, 442 U. S. 114 –126 (1979).[10] Abramski’s principal attack on his §922(a)(6) conviction therefore fails. Contrary to his contention, the information Question 11.a. requests—“[a]re you the actual transferee/buyer[?]” or, put conversely, “are [you] acquir-ing the firearm(s) on behalf of another person[?]”—is relevant to the lawfulness of a gun sale. That is because, for all the reasons we have given, the firearms law contemplates that the dealer will check not the fictitious purchaser’s but instead the true purchaser’s identity and eligibility for gun ownership. By concealing that Alvarez was the actual buyer, Abramski prevented the dealer from transacting with Alvarez face-to-face, see §922(c), recording his name, age, and residence, see §922(b)(5), inspecting his photo ID, see §922(t)(1)(C), submitting his identifying information to the background check system, see §922(t)(1)(B), and determining whether he was prohibited from receiving a firearm, see §922(d). In sum, Abramski thwarted application of essentially all of the firearms law’s requirements. We can hardly think of a misrepresentation any more material to a sale’s legality. III Abramski also challenges his §922(a)(6) conviction on a narrower ground. For purposes of this argument, he assumes that the Government can make its case when a straw hides the name of an underlying purchaser who is legally ineligible to own a gun. But, Abramski reminds us, that is not true here, because Alvarez could have bought a gun for himself. In such circumstances, Abramski claims that a false response to Question 11.a. is not material. See Brief for Petitioner 28–30. Essentially, Abramski contends, when the hidden purchaser is eligible anyway to own a gun, all’s well that ends well, and all should be forgiven. But we think what we have already said shows the fallacy of that claim: Abramski’s false statement was material because had he revealed that he was purchasing the gun on Alvarez’s behalf, the sale could not have proceeded under the law—even though Alvarez turned out to be an eligible gun owner. The sale, as an initial matter, would not have complied with §922(c)’s restrictions on absentee purchases. See supra, at 11–12. If the dealer here, Town Police Supply, had realized it was in fact selling a gun to Alvarez, it would have had to stop the transaction for failure to comply with those conditions. Yet more, the sale could not have gone forward because the dealer would have lacked the information needed to verify and record Alvarez’s identity and check his background. See §§922(b)(5), (t)(1)(B)–(C); supra, at 10–12. Those requirements, as we have explained, pertain to the real buyer; and the after-the-fact discovery that Alvarez would have passed the background check cannot somehow wipe them away. Accordingly, had Town Police Supply known Abramski was a straw, it could not have certified, as Form 4473 demands, its belief that the transfer was “not unlawful.” Supp. App. 3. An analogy may help show the weakness of Abramski’s argument. Suppose a would-be purchaser, Smith, lawfully could own a gun. But further suppose that, for reasons of his own, Smith uses an alias (let’s say Jones) to make the purchase. Would anyone say “no harm, no foul,” just because Smith is not in fact a prohibited person under §922(d)? We think not. Smith would in any event have made a false statement about who will own the gun, impeding the dealer’s ability to carry out its legal responsibilities. So too here. Abramski objects that because Alvarez could own a gun, the statute’s core purpose—“keeping guns out of the hands” of criminals and other prohibited persons—“is not even implicated.” Brief for Petitioner 29. But that argument (which would apply no less to the alias scenario) misunderstands the way the statute works. As earlier noted, the federal gun law makes the dealer “[t]he principal agent of federal enforcement.” Huddleston, 415 U. S., at 824, see supra, at 16. It is that highly regulated, legally knowledgeable entity, possessing access to the expansive NICS database, which has the responsibility to “[e]nsure that, in the course of sales or other dispositions . . . , weapons [are not] obtained by individuals whose possession of them would be contrary to the public interest.” 415 U. S., at 825. Nothing could be less consonant with the statutory scheme than placing that inquiry in the hands of an unlicensed straw purchaser, who is unlikely to be familiar with federal firearms law and has no ability to use the database to check whether the true buyer may own a gun. And in any event, keeping firearms out of the hands of criminals is not §922’s only goal: The statute’s record-keeping provisions, as we have said, are also designed to aid law enforcement in the investigation of crime. See supra, at 2–3, 12–13. Abramski’s proposed limitation on §922(a)(6) would undercut that purpose because many would-be criminals remain legally eligible to buy firearms, and thus could use straws to purchase an endless stream of guns off-the-books. See, e.g., Polk, 118 F. 3d, at 289 (eligible gun buyer used straw purchasers to secretly accumulate an “arsenal of weapons” for a “massive offensive” against the Federal Government). In addition, Abramski briefly notes that until 1995, the ATF took the view that a straw purchaser’s misrepresentation counted as material only if the true buyer could not legally possess a gun. See Brief for Petitioner 7–8; n. 8, supra. We may put aside that ATF has for almost two decades now taken the opposite position, after reflecting on both appellate case law and changes in the statute. See Tr. of Oral Arg. 41; Brady Handgun Violence Prevention Act of 1993, §103, 107Stat. 1541 (codified at 18 U. S. C. §922(t)). The critical point is that criminal laws are for courts, not for the Government, to construe. See, e.g., United States v. Apel, 571 U. S. ___, (2014) (slip op., at 9) (“[W]e have never held that the Government’s reading of a criminal statute is entitled to any deference”). We think ATF’s old position no more relevant than its current one—which is to say, not relevant at all. Whether the Government interprets a criminal statute too broadly (as it sometimes does) or too narrowly (as the ATF used to in construing §922(a)(6)), a court has an obligation to correct its error. Here, nothing suggests that Congress—the entity whose voice does matter—limited its prohibition of astraw purchaser’s misrepresentation in the way Abramski proposes. IV Finally, Abramski challenges his conviction under §924(a)(1)(A), which prohibits “knowingly mak[ing] any false statement . . . with respect to the information required by this chapter to be kept in the records” of a federally licensed dealer. That provision is broader than §922(a)(6) in one respect: It does not require that the false statement at issue be “material” in any way. At the same time, §924(a)(1)(A) includes an element absent from §922(a)(6): The false statement must relate to “information required by this chapter to be kept in [a dealer’s] records.” Abramski notes that the indictment in this case charged him with only one misrepresentation: his statement in response to Question 11.a. that he was buying the Glock on his own behalf rather than on someone else’s. And, he argues, that information (unlike the transferee’s “name, age, and place of residence,” which he plausibly reads the indictment as not mentioning) was not required “by this chapter”—but only by Form 4473 itself—to be kept in the dealer’s permanent records. Brief for Petitioner 32. We disagree. Included in “this chapter”—Chapter 44 of Title 18—is a provision, noted earlier, requiring a dealer to “maintain such records of . . . sale, or other disposition of firearms at his place of business for such period, and in such form, as the Attorney General may by regulations prescribe.” §923(g)(1)(A); supra, at 3. Because of that statutory section, the information that the Attorney General’s regulations compel a dealer to keep is information “required by this chapter.” And those regulations (the validity of which Abramski does not here contest) demand that every licensed dealer “retain . . . as a part of [its] required records, each Form 4473 obtained in the course of” selling or otherwise disposing of a firearm. 27 CFR §478.124(b). Accordingly, a false answer on that form, such as the one Abramski made, pertains to information a dealer is statutorily required to maintain.[11] V No piece of information is more important under federal firearms law than the identity of a gun’s purchaser—the person who acquires a gun as a result of a transaction with a licensed dealer. Had Abramski admitted that he was not that purchaser, but merely a straw—that he was asking the dealer to verify the identity of, and run a background check on, the wrong individual—the sale here could not have gone forward. That makes Abramski’s misrepresentation on Question 11.a. material under §922(a)(6). And because that statement pertained to information that a dealer must keep in its permanent records under the firearms law, Abramski’s answer to Question 11.a. also violated §924(a)(1)(A). Accordingly, we affirm the judgment of the Fourth Circuit. It is so ordered.Notes 1 The principal exception is for any buyer who has a state permit that has been “issued only after an authorized government official has verified” the buyer’s eligibility to own a gun under both federal and state law. §922(t)(3). 2 Compare , 118 F. 3d, at 294–295, withv, 687 F. 3d 697, 700–701 (CA6 2012) (a misrepresentation about the true purchaser’s identity is material even when he can legally own a gun); v, 605 F. 3d 1271, 1279–1280 (CA11 2010) (same). 3 Reflecting that prior consensus, neither of Abramski’s principal —the National Rifle Association and a group of 26 States—joins Abramski in making this broader argument. They confine themselves to supporting the more limited claim about straw purchases made on behalf of eligible gun owners, addressed , at 19–22. 4 The dissent reserves the question whether the false statement would be material if the straw purchaser knew that the true buyer was not eligible to own a firearm. at 6, n. 2. But first, that reservation is of quite limited scope: Unlike Abramski’s back-up argument, which imposes liability whenever the true purchaser cannot legally buy a gun, the dissent’s reservation applies only when the straw has knowledge of (or at least reasonable cause to believe) that fact. And as we will later note, straws often do not have such knowledge. See , at 12–13. Second, the reservation (fairly enough for a reservation) rests on an uncertain legal theory. According to the dissent, a straw buyer might violate §922(a)(6) if a dealer’s sale to him aids and abets his violation of §922(d)—a provision barring knowingly transferring a gun to an ineligible person, see at 8, 17–18. But that reasoning presupposes that a firearms dealer acting in the ordinary course of business can ever have the intent needed to aid and abet a crime—a question this Court reserved not six months ago. See v, 572 U. S. ___ (2014) (slip op., at 12, n. 8). 5 The dissent claims the answer is easy because “if I give my son $10 and tell him to pick up milk and eggs at the store, no English speaker would say that the store ‘sells’ the milk and eggs to me.” , at 4.But try a question more similar to the one the gun law’s text raises: If I send my brother to the Apple Store with money and instructions to purchase an iPhone, and then take immediate and sole possession of that device, am I the “person” (or “transferee”) who has bought the phone or is he? Nothing in ordinary English usage compels an answer either way. 6 Contrary to the dissent’s view, our analysis does not rest on mere “purpose-based arguments.” . at 7. We simply recognize that a court should not interpret each word in a statute with blinders on, refusing to look at the word’s function within the broader statutory context. As we have previously put the point, a “provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” v. , . 7 That reading would also, at a stroke, declare unlawful a large part of what the ATF does to combat gun trafficking by criminals. See Dept. of Treasury, Bureau of Alcohol, Tobacco & Firearms, Following the Gun: Enforcing Federal Laws Against Firearms Traffickers, p. xi (June 2000) (noting that in several prior years “[a]lmost half of all [ATF firearm] trafficking investigations involved straw purchasers”). 8 The dissent is mistaken when it says that the ATF’s own former view of the statute refutes this proposition. See at 11–12. As we will later discuss, see at 21–22, the ATF for a time thought that §922(a)(6) did not cover cases in which the true purchaser could have legally purchased a gun himself. But Abramski’s principal argument extends much further, to cases in which straws buy weapons for criminals, drug addicts, and other prohibited purchasers. For the reasons just stated, that interpretation would render the statute all but useless. And although the dissent appeals to a snippet of congressional testi-mony to suggest that ATF once briefly held that extreme view of the statute, it agrees that by at least 1979 (well over three decades ago), ATF recognized the unlawfulness of straw purchases on behalf of prohibited persons. 9 The dissent responds: “That certainly distinguishes” the individual transacting with a dealer through a straw from an individual receiving a gun from a private party; “so would the fact that [the former] has orange hair.” at 9. But that is an example of wit gone wrong. Whether the purchaser has orange hair, we can all agree, is immaterial to the statutory scheme. By contrast, whether the purchaser has transacted with a licensed dealer is integral to the statute—because, as previously noted, “the federal scheme . . . controls access to weapons” through the federally licensed firearms dealer, who is “the principal agent of federal enforcement.” v. , ; see at 16. In so designing the statute, Congress chose not to pursue the goal of “controll[ing] access” to guns to the nth degree; buyers can, as the dissent says, avoid the statute’s background check and record-keeping requirements by getting a gun second-hand. But that possibility provides no justification for limiting the statute’s considered regulation of sales. 10 Nor do we agree with the dissent’s argument (not urged by Abramski himself) that the rule of lenity defeats our construction. See at 12–14. That rule, as we have repeatedly emphasized, applies only if, “after considering text, structure, history and purpose, there remains a grievous ambiguity or uncertainty in the statute such that the Court must simply guess as to what Congress intended.” v. , 570 U. S ___, ___ (2013) (slip op. at 26) (quoting v. , ). We are not in that position here: Although the text creates some ambiguity, the context, structure, history, and purpose resolve it. The dissent would apply the rule of lenity here because the statute’s text, taken alone, permits a narrower construction, but we have repeatedly emphasized that is not the appropriate test. See, v. , ; v. , . 11 The dissent argues that our view would impose criminal liability for a false answer even to an “ultra vires question,” such as “the buyer’s favorite color.” , at 15. We need not, and do not, opine on that hypothetical, because it is miles away from this case. As we have explained, see at 9–19, Question 11.a. is not ultra vires, but instead fundamental to the lawfulness of a gun sale. It is, indeed, part and parcel of the dealer’s determination of the (true) buyer’s “name, age, and place of residence,” which §922(b)(5) requires the dealer to keep. That section alone would justify Abramski’s conviction under §924(a)(1)(A) if the indictment here had clearly alleged that, in addition to answering Question 11.a. falsely, he lied about that buyer’s “name, age, and place of residence.”

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus ABRAMSKI v. UNITED STATES certiorari to the united states court of appeals for the fourth circuit No. 12–1493. Argued January 22, 2014—Decided June 16, 2014 Petitioner Bruce Abramski offered to purchase a handgun for his uncle. The form that federal regulations required Abramski to fill out (Form 4473) asked whether he was the “actual transferee/buyer” of the gun, and clearly warned that a straw purchaser (namely, someone buying a gun on behalf of another) was not the actual buyer. Abramski falsely answered that he was the actual buyer. Abramski was convicted for knowingly making false statements “with respect to any fact material to the lawfulness of the sale” of a gun, 18 U. S. C. §922(a)(6), and for making a false statement “with respect to the information required . . . to be kept” in the gun dealer’s records, §924(a)(1)(A). The Fourth Circuit affirmed. Held: 1. Abramski’s misrepresentation is material under §922(a)(6). . (a) Abramski contends that federal gun laws are entirely unconcerned with straw arrangements: So long as the person at the counter is eligible to own a gun, the sale to him is legal under the statute. To be sure, federal law regulates licensed dealer’s transactions with “persons” or “transferees” without specifying whether that language refers to the straw buyer or the actual purchaser. But when read in light of the statute’s context, structure, and purpose, it is clear this language refers to the true buyer rather than the straw. Federal gun law establishes an elaborate system of in-person identification and background checks to ensure that guns are kept out of the hands of felons and other prohibited purchasers. §§922(c), 922(t). It also imposes record-keeping requirements to assist law enforcement authorities in investigating serious crimes through the tracing of guns to their buyers. §922(b)(5), 923(g). These provisions would mean little if a would-be gun buyer could evade them all simply by enlisting the aid of an intermediary to execute the paperwork on his behalf. The statute’s language is thus best read in context to refer to the actual rather than nominal buyer. This conclusion is reinforced by this Court’s standard practice of focusing on practical realities rather than legal formalities when identifying the parties to a transaction. . (b) Abramski argues more narrowly that his false response was not material because his uncle could have legally bought a gun for himself. But Abramski’s false statement prevented the dealer from insisting that the true buyer (Alvarez) appear in person, provide identifying information, show a photo ID, and submit to a background check. §§922(b), (c), (t). Nothing in the statute suggests that these legal duties may be wiped away merely because the actual buyer turns out to be legally eligible to own a gun. Because the dealer could not have lawfully sold the gun had it known that Abramski was not the true buyer, the misstatement was material to the lawfulness of the sale. . 2. Abramski’s misrepresentation about the identity of the actual buyer concerned “information required by [Chapter 44 of Title 18 of the United States Code] to be kept” in the dealer’s records. §924(a)(1)(A). Chapter 44 contains a provision requiring a dealer to “maintain such records . . . as the Attorney General may . . . prescribe.” §923(g)(1)(A). The Attorney General requires every licensed dealer to retain in its records a completed copy of Form 4473, see 27 CFR §478.124(b), and that form in turn includes the “actual buyer” question that Abramski answered falsely. Therefore, falsely answering a question on Form 4473 violates §924(a)(1)(A). . 706 F.3d 307, affirmed. Kagan, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.

Section 922(d) of the Gun Control Act of 1968 (Act) makes it a crime for any person in connection with the acquisition or attempted acquisition of any firearm from a licensed dealer knowingly to make any false or fictitious oral or written statement to the dealer concerning the lawfulness of the sale or other disposition of such firearm or ammunition. Section 924(a)(1)(A) prohibits knowingly mak[ing] any false statement or representation with respect to the information required by this chapter to be kept in the records of a federally licensed gun dealer. Petitioner, a former police officer, offered to buy a handgun for his uncle, but the uncle sent him a check for $400 with the gun written on the memo line. Subsequently, petitioner filled out Form 4473, falsely checking that he was the purchaser on the buyer's behalf. He also signed the requisite certification, acknowledging his understanding that a false answer to Question 11.a. is a federal crime. After the buyer cleared the National Instant Background Check System (NICS) background check, the dealer sold him the gun. Federal agents then executed a warrant for a different crime, and a different grand jury found that Abramski became a suspect in the different crime after he became indicted. The court denied his motions to dismiss the charges, and he then entered a conditional guilty plea, reserving his right to challenge the rulings. The District Court then sentenced him to five years of probation on each count, running concurrently. The Court of Appeals affirmed the convictions. Held: The judgment is affirmed. ;;. (a) As the ATF declares in the form of its certification, §922 (a)(6) criminalizes a customer's statement that he is the purchaser, purchasing a firearm for himself, when in fact he is a straw purchaser, buying the gun on someone else’s behalf. That provision helps make certain that a dealer will receive truthful information as to any matter relevant to a gun sale's legality, whether or not the actual buyer is eligible to own a gun.. (b) The ATF also makes an exception for any buyer who has a state permit that has been issued only after an authorized government official has verified a buyer's eligibility for a gun under both federal and state law. To ensure the accuracy of such submissions, the customer must sign a certification declaring his answers true, correct and complete. That certification provides that the signator understands that making any false statements respecting the transaction is a crime punishable as a felony under federal law, and also requires the dealer to maintain the information at issue in its records. There is no merit to the argument that the false statement would be material if the straw purchaser knew that the true buyer was not eligible to purchase a firearm. Such a reading would undermine the gun law, which establishes an elaborate system to verify a would-be gun purchaser's identity and check on his background, also requires that the information so gathered go into a dealer's permanent records, and would also declare unlawful a large part of what the ATF does to combat gun trafficking by criminals. Moreover, the ATF has for almost two decades taken the position that the Government can make its case when a straw hides the name of an underlying purchaser who is legally ineligible to own a gun, but that is not true here, because the purchaser could have bought a gun for himself. In such circumstances, a false response to a false statement is material because the straw has knowledge of (or at least reasonable cause to believe) that fact. And the reservation (fairly enough for a reservation) rests on an uncertain legal theory. According to the dissent, a straw buyer might also violate § 922 if a dealer sells a gun to him as gifts or on the secondary market, since he may have had the information needed to verify and record the gun purchaser and check his background. . 706 F.3d 307, affirmed. BLACKMUN, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. DOUGLAS J., filed a dissenting opinion, post, p.. STEWART J., took no part in the consideration or decision of the case.

2013_12-315

https://www.oyez.org/cases/2013/12-315

. In 2001, Congress created the Transportation Security Administration (TSA) to assess and manage threats against air travel. Aviation and Transportation Security Act (ATSA),49 U. S. C. §44901 et seq. To ensure that theTSA would be informed of potential threats, Congress gave airlines and their employees immunity against civil liability for reporting suspicious behavior. §44941(a). But this immunity does not attach to “any disclosure made with actual knowledge that the disclosure was false, inaccurate, or misleading” or “any disclosure made with reckless disregard as to the truth or falsity of that disclosure.” §44941(b). The question before us is whether ATSA immunity may be denied under §44941(b) without a determination that a disclosure was materially false. We hold that it may not. Because the state courts made no such determination, and because any falsehood in the disclosure here would not have affected a reasonable security officer’s assessment of the supposed threat, we reverse the judgment of the Colorado Supreme Court.IA William Hoeper joined Air Wisconsin Airlines Corporation as a pilot in 1998. But by late 2004, Air Wisconsin had stopped operating flights from Denver, Hoeper’s home base, on any type of aircraft for which he was certified. To continue flying for Air Wisconsin out of Denver, Hoeper needed to gain certification on the British Aerospace 146 (BAe-146), an aircraft he had not flown. Hoeper failed in his first three attempts to pass a proficiency test. After the third failure, as he later acknowledged at trial, his employment was “at [Air Wisconsin’s] discretion.” App. 193. But he and Air Wisconsin entered into an agreement to afford him “one more opportunity to pass [the] proficiency check.” Id., at 426. The agreement left little doubt that Hoeper would lose his job if he failed again. In December 2004, Hoeper flew from Denver to Virginia for simulator training as part of this final test. During the training, Hoeper failed to cope with a challenging scenario created by the instructor, Mark Schuerman, and the simulator showed the engines “flam[ing] out” due to a loss of fuel. App. 203. As Schuerman began to tell Hoeper that he “should know better,” ibid., Hoeper responded angrily. He later described what happened:“At this point, that’s it. I take my headset off and I toss it up on the glare shield. . . . [Schuerman] and I exchanged words at the same elevated decibel level. Mine went something like this: This is a bunch of shit. I’m sorry. You are railroading the situation and it’s not realistic.” Id., at 203–204.When Hoeper announced that he wanted to call the legal department of the pilots’ union, Schuerman ended the session so that Hoeper could do so. Schuerman then re-ported Hoeper’s behavior to Patrick Doyle, the Wisconsin-based manager of the BAe-146 fleet. Doyle booked Hoeper on a United Airlines flight back to Denver. Several hours after Schuerman’s report, Doyle discussed the situation at Air Wisconsin’s headquarters with the airline’s Vice President of Operations, Kevin LaWare; its Managing Director of Flight Operations, Scott Orozco; and its Assistant Chief Pilot, Robert Frisch. LaWare later ex-plained the accretion of his concerns about what Hoeper might do next. He regarded Hoeper’s behavior in the simulator as “a fairly significant outburst,” of a sort that he “hadn’t seen . . . before.” Id., at 276. And he knew “it was a given that . . . Hoeper’s employment was . . . going to be terminated” as a result of his failure to complete the simulator training. Id., at 278. Then, LaWare testified, Orozco mentioned that Hoeper was a Federal Flight Deck Officer (FFDO). The FFDO program allows the Government to “deputize volunteer pilots of air carriers . . . to defend the flight decks of aircraft . . . against acts of criminal violence or air piracy.” §44921(a). FFDOs are permitted “to carry a firearm while engaged in providing air transportation.” §44921(f )(1). Hoeper had become an FFDO earlier in 2004 and had been issued a firearm. He was not allowed to carry the firearm during his trip to the training facility, because he was not “engaged in providing air transportation,” ibid. But according to one official at the meeting, the Denver airport’s security procedures made it possible for crew members to bypass screening, so that Hoeper could have carried his gun despite the rule. Indeed, Frisch later testified that he was “aware of one” incident in which an Air Wisconsin pilot had come to training with his FFDO weapon. App. 292. On the basis of this information, LaWare concluded, there was “no way . . . to confirm” whether “Hoeper had his weapon with him, even though . . . by policy, [he was] not supposed to have it with him.” Id., at 279. Finally, LaWare testified, he and the other Air Wisconsin officials discussed two prior episodes in which disgruntled airline employees had lashed out violently. Id., at 280. In one incident, a FedEx flight engineer under investigation for misconduct “entered the cockpit” of a FedEx flight “and began attacking the crew with a hammer” before being subdued. United States v. Calloway, 116 F. 3d 1129, 1131 (CA6 1997). In another, a recently fired ticket agent brought a gun onto a Pacific Southwest Airlines flight and shot his former supervisor and the crew, leading to a fatal crash. Malnic, Report Confirms That Gunman Caused 1987 Crash of PSA Jet, L. A. Times,Jan. 6, 1989, p. 29. In light of all this—Hoeper’s anger, his impending termination, the chance that he might be armed, and the history of assaults by disgruntled airline employees—LaWare decided that the airline “need[ed] to make a call to the TSA,” to let the authorities know “the status” of the situation. App. 282. Doyle offered to make the call. According to the jury, he made two statements to the TSA: first, that Hoeper “was an FFDO who may be armed” and that the airline was “concerned about his mental stability and the whereabouts of his firearm”; and second, that an “[u]nstable pilot in [the] FFDO program was terminated today.” App. to Pet. for Cert. 111a. (The latter statement appears in the record as the subject line of an internal TSA e-mail, summarizing the call from Doyle. App. 414.) The TSA responded to the call by ordering that Hoeper’s plane return to the gate. Officers boarded the plane, re-moved Hoeper, searched him, and questioned him about the location of his gun. When Hoeper stated that the gun was at his home in Denver, a Denver-based federal agent went there to retrieve it. Later that day, Hoeper boarded a return flight to Denver. Air Wisconsin fired him the following day.B Hoeper sued Air Wisconsin in Colorado state court on several claims, including defamation.[1] Air Wisconsin moved for summary judgment on the basis of ATSA immunity,[2] but the trial court denied it, ruling that the jury was entitled to find the facts pertinent to immunity. The case went to trial, and the court denied Air Wisconsin’s motion for a directed verdict on the same basis. It submitted the question of ATSA immunity to the jury, with the instruction—following the language of §44941(b)—that immunity would not apply if Hoeper had proved thatAir Wisconsin “made the disclosure [to the TSA] with ac-tual knowledge that the disclosure was false, inaccurate, or misleading” or “with reckless disregard as to its truth or falsity.” App. 582. The jury instructions did not state that ATSA immunity protects materially true statements. The jury found for Hoeper on the defamation claim and awarded him $849,625 in compensatory damages and $391,875 in punitive damages. The court reduced the latter award to $350,000, for a total judgment of just under $1.2 million, plus costs. The Colorado Court of Appeals affirmed. 232 P. 3d 230 (2009). It held “that the trial court properly submitted the ATSA immunity issue to the jury,” that “the record supports the jury’s rejection of immunity,” and that the evidence was sufficient to support the jury’s defamation verdict. Id., at 233. The Colorado Supreme Court affirmed. 2012 WL 907764 (Mar. 19, 2012). It began by holding, contrary to the lower courts, “that immunity under the ATSA is a question of law to be determined by the trial court before trial.” Id., at *4. But it concluded that the trial court’s error in submitting immunity to the jury was “harmless because Air Wisconsin is not entitled to immunity.” Id., at *6. In a key footnote, the court stated: “In our determination of immunity under the ATSA, we need not, and therefore do not, decide whether the statements were true or false. Rather, we conclude that Air Wisconsin made the statements with reckless disregard as to their truth or falsity.” Id., at *16, n. 6. The court thus appears tohave labored under the assumption that even true statements do not qualify for ATSA immunity if they are made recklessly. Applying this standard, and giving “no weight to the jury’s finding[s],” ibid., n. 5, the court held that “[a]l-though the events at the training may have warranteda report to TSA,” Air Wisconsin’s statements “overstated those events to such a degree that they were made with reckless disregard of their truth or falsity.” Id., at *7. The court opined that Air Wisconsin “would likely be immune under the ATSA if Doyle had reported that Hoeper was an Air Wisconsin employee, that he knew he would be terminated soon, that he had acted irrationally at the training three hours earlier and ‘blew up’ at test administrators, and that he was an FFDO pilot.” Id., at *8. But because Doyle actually told TSA “(1) that he believed Hoeper to be mentally unstable; (2) that Hoeper had been terminated earlier that day; and (3) that Hoeper may have been armed,” id., at *7, the court determined that his statements “went well beyond” the facts and did not qualify for immunity, id., at *8. The court went on to conclude that the evidence was sufficient to support the jury’s defamation verdict. Justice Eid, joined by two others, dissented in part. She agreed with the majority’s holding that immunity is an issue for the court, not the jury. But she reasoned that Air Wisconsin was entitled to immunity “because [its] statements to the TSA were substantially true.” Id., at *11. We granted certiorari to decide “[w]hether ATSA immunity may be denied without a determination that the air carrier’s disclosure was materially false.” 570 U. S. ___ (2013).IIA Congress patterned the exception to ATSA immunity after the actual malice standard of New York Times Co. v. Sullivan,376 U. S. 254 (1964), and we have long held that actual malice requires material falsity. Because we presume that Congress meant to incorporate the settled meaning of actual malice when it incorporated the language of that standard, we hold that a statement otherwise eligible for ATSA immunity may not be deniedimmunity unless the statement is materially false. In New York Times, we held that under the First Amendment, a public official cannot recover “for a defamatory falsehood relating to his official conduct unless he proves that the 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 279–280. Congress borrowed this exact language in denying ATSA immunity to “(1) any disclosure made with actual knowledge that the disclosure was false, inaccurate, or misleading; or (2) any disclosure made with recklessdisregard as to the truth or falsity of that disclosure.” §44941(b). One could in principle construe the language of the actual malice standard to cover true statements made recklessly. But we have long held, to the contrary, that actual malice entails falsity. See, e.g., Philadelphia Newspapers, Inc. v. Hepps,475 U. S. 767,775 (1986) (“[A]s one might expect given the language of the Court in New York Times, a public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation” (citation omitted)); Garrison v. Louisiana,379 U. S. 64,74 (1964) (“We held in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false”). Indeed, we have required more than mere falsity to establish actual malice: The falsity must be “material.” Masson v. New Yorker Magazine, Inc.,501 U. S. 496,517 (1991). As we explained in Masson, “[m]inor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’ ” Ibid. A “statement is not considered false unless it ‘would have a different effect on the mind of the reader from that which the pleaded truth would have produced.’ ” Ibid. (quoting R. Sack, Libel, Slander, and Related Problems 138 (1980)). These holdings were settled when Congress enacted the ATSA, and we therefore presume that Congress meant to adopt the material falsity requirement when it incorporated the actual malice standard into the ATSA immunity exception. “[I]t is a cardinal rule of statutory construction that, when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it is taken.” FAA v. Cooper, 566 U. S. ___, ___ (2012) (slip op., at 6) (internal quotation marks omitted). The actual malice standard does not cover materially true statements made recklessly, so we presume that Congress did not mean to deny ATSA immunity to such statements. Other indicia of statutory meaning could rebut this presumption, but here, they do not. First, the ATSA’stext favors a falsity requirement. The first subsection of §44941(b) requires falsity, as a true disclosure cannot have been made “with actual knowledge” that it “was false.” The only question is whether the second subsection—which denies immunity to “any disclosure made with reckless disregard as to [its] truth or falsity”—similarly requires falsity. We conclude that it does. The second subsection simply extends the immunity exception from knowing falsehoods to reckless ones, ensuring that an air carrier cannot avoid liability for a baseless report by sticking its head in the sand to avoid “actual knowledge” that its statements are false. “[T]he defense of truth . . . , even if not explicitly recognized, . . .is implicit in . . . a standard of recovery that rests on knowing or reckless disregard of the truth.” Cox Broadcasting Corp. v. Cohn,420 U. S. 469–499 (1975) (Powell, J., concurring). A material falsity requirement also serves the purpose of ATSA immunity. The ATSA shifted from airlines to the TSA the responsibility “for assessing and investigating possible threats to airline security.” 2012 WL 907764, *14 (Eid, J., concurring in part and dissenting in part). In directing the TSA to “receive, assess, and distribute intelligence information related to transportation security,”49 U. S. C. §114(f)(1), Congress wanted to ensure that air carriers and their employees would not hesitate to provide the TSA with the information it needed. This is the purpose of the immunity provision, evident both from its context and from the title of the statutory section that contained it: “encouraging airline employees to report sus-picious activities.” ATSA §125,115Stat.631 (capitali-zation and boldface type omitted). It would defeat this purpose to deny immunity for substantially true reports, on the theory that the person making the report had not yet gathered enough information to be certain of its truth. Such a rule would restore the pre-ATSA state of affairs, in which air carriers bore the responsibility to investigate and verify potential threats. We therefore hold that ATSA immunity may not be denied under §44941(b) to materially true statements. This interpretation of the statute is clear enough that Hoeper effectively concedes it. See Brief for Respondent 30 (acknowledging that if the Colorado Supreme Court actually said “ ‘an airline may be denied ATSA immunity . . . for reporting true information,’ ” then “the court was likely wrong”). Hoeper does point out in a footnote that given Congress’ desire to deny immunity to “ ‘bad actors,’ ” and “given that the vast majority of reckless statements will not turn out to be true[,] . . . Congress could have quite reasonably chosen to deny the special privilege of ATSA immunity to all reckless speakers,” even those whose statements turned out to be true. Id., at 30, n. 12. But although Congress could have made this choice, nothing about the statute’s text or purpose suggests that it actually did. Instead, Congress chose to model the exception to ATSA immunity after a standard we have long construed to require material falsity.B We are not persuaded by Hoeper’s arguments thatwe should affirm the judgment of the Colorado Supreme Court notwithstanding its misapprehension of the ATSA immunity standard. Hoeper first argues that Air Wisconsin forfeited the claim that it is entitled to immunity because its statements were materially true. His premise is that AirWisconsin argued the truth of its statements only in challenging the evidentiary basis for the defamation verdict, not in asserting immunity. But Air Wisconsin’s brief before the Colorado Supreme Court argued that the exception to ATSA immunity “appears to incorporate the New York Times actual malice standard,” which—as we have explained—requires material falsity. Petitioner’s Opening Brief in No. 09SC1050, p. 24. Hoeper next argues that the Colorado Supreme Court performed the requisite analysis of material falsity, albeit in the context of finding the record sufficient to support the jury’s defamation verdict. For several reasons, however, this analysis does not suffice for us to affirm the denialof ATSA immunity. First, to the extent that the immunity determination belongs to the court—as the Colorado Supreme Court held—a court’s deferential review of jury findings cannot substitute for its own analysis of the record. Second, the jury here did not find that any falsity in Air Wisconsin’s statements was material, because the trial court instructed it only to determine whether “[o]ne or more of th[e] statements was false,” App. 580, without addressing materiality. Third, applying the material falsity standard to a defamation claim is quite different from applying it to ATSA immunity. In both contexts,a materially false statement is one that “ ‘would have a different effect on the mind of the reader [or listener] from that which the . . . truth would have produced.’ ” Masson, 501 U. S., at 517. But the identity of the relevant reader or listener varies according to the context. In determining whether a falsehood is material to a defamation claim, we care whether it affects the subject’s reputation in the community. In the context of determining ATSA immu-nity, by contrast, we care whether a falsehood affects the authorities’ perception of and response to a given threat.[3]III Finally, the Colorado Supreme Court’s analysis of material falsity was erroneous. We turn next to explaining why, by applying the ATSA immunity standard to the facts of this case.[4]A We begin by addressing how to determine the material-ity of a false statement in the ATSA context. As we noted earlier, a materially false statement is generally one that “ ‘would have a different effect on the mind of the reader [or listener] from that which the . . . truth would have produced.’ ” Ibid. The parties quibble over whether ATSA immunity requires some special version of this standard, but they more or less agree—as do we—that the usual standard suffices as long as the hypothetical reader or listener is a security officer. A further question is what it means for a statement to produce “ ‘a different effect on the mind of’ ” a security officer from that which the truth would have produced. In defamation law, the reputational harm caused by a false statement is its effect on a reader’s or listener’s mind. But contrary to the position of Hoeper’s counsel at oral argument, Tr. of Oral Arg. 32–33, courts cannot decide whether a false statement produced “ ‘a different effect on the mind of’ ” a hypothetical TSA officer without considering the effect of that statement on TSA’s behavior. After all, the whole reason the TSA considers threat reports is to deter-mine and execute a response. A plaintiff seeking to defeat ATSA immunity need not show “precisely what a particular official or federal agency would have done in a counterfactual scenario.” Brief for United States as Amicus Curiae 27. Such a showing would be “impossible . . . given the need to maintain se-crecy regarding airline security operations.” Brief for Re-spondent 42. But any falsehood cannot be material, for purposes of ATSA immunity, absent a substantial likelihood that a reasonable security officer would consider it important in determining a response to the supposed threat. Cf. TSC Industries, Inc. v. Northway, Inc.,426 U. S. 438,449 (1976) (an omission in a proxy solicitation “is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote”). This standard “is an objectiveone, involving the [hypothetical] significance of an omitted or misrepresented fact to a reasonable” security official, rather than the actual significance of that fact to a particular security official. Id., at 445.B We apply the material falsity standard to the facts of this case. In doing so, we neither embrace nor reject the Colorado Supreme Court’s unanimous holding “that immunity under the ATSA is a question of law to be determined by the trial court before trial.” 2012 WL 9097764, *4; see id., at *11 (Eid, J., concurring in part and dissenting in part) (agreeing with majority). Rather, we conclude that even if a jury were to find the historical facts in the manner most favorable to Hoeper, Air Wisconsin is entitled to ATSA immunity as a matter of law. We begin with Air Wisconsin’s statement that Hoeper “was an FFDO who may be armed.” App. to Pet. for Cert. 111a. Hoeper cannot dispute the literal truth of this statement: He was an FFDO, and because FFDOs possess weapons, any FFDO “may be armed.” Hoeper argues only that to avoid any misinterpretation, Air Wisconsin should have qualified the statement by adding that it had no reason to think he was actually carrying his gun during the trip to Virginia, especially because he was not allowed to do so under §44921(f )(1).[5] We agree that Air Wisconsin’s statement could have been misinterpreted by some, but we reject Hoeper’s argument for two reasons. First, any confusion of the nature that Hoeper suggests would have been immaterial: A reasonable TSA officer, having been told only that Hoeper was an FFDO and that he was upset about losing his job, would have wanted to investigate whether Hoeper was carrying his gun. Second, to accept Hoeper’s demand for such precise wording would vitiate the purpose of ATSA immunity: to encourage air carriers and their employees, often in fast-moving situations and with little time to fine-tune their diction, to provide the TSA immediately with information about potential threats. Baggage handlers, flight attendants, gate agents, and other airline employees who report suspicious behavior to the TSA should not face financial ruin if, in the heat of a potential threat, they fail to choose their words with exacting care.[6] We next consider Air Wisconsin’s statement that Hoeper “was terminated today.” App. to Pet. for Cert. 111a. When Air Wisconsin made that statement, Hoeper had not yet been fired. But everyone knew the firing was almost certainly imminent. Hoeper acknowledged that his employment was “at [Air Wisconsin’s] discretion” after his third failed test, App. 193, and the agreement between him and Air Wisconsin stated that his “fourth . . . attempt” to pass the test would be his “final” one, id., at 426. No reasonable TSA officer would care whether an angry, po-tentially armed airline employee had just been fired or merely knew he was about to meet that fate. Finally, we consider Air Wisconsin’s statements that Hoeper was “[u]nstable” and that it was “concerned about his mental stability.” App. to Pet. for Cert. 111a. Al-though the details of Hoeper’s behavior during the simulator session may be disputed, Hoeper himself testified that he had become visibly angry: He decided “that’s it,” he removed his headset and “toss[ed] it,” and he accused the instructor—at an “elevated decibel level,” and with an expletive—of “railroading the situation.” App. 203–204. It would surely have been correct, then, for Air Wisconsin to report that Hoeper “ ‘blew up’ ” during the test. 2012 WL 907764, *8. The question is whether, from the perspective of a reasonable security officer, there is any material difference between a statement that Hoeper had just “blown up” in a professional setting and a statement that hewas “[u]nstable.” We think not. We are no more troubled by Air Wisconsin’s related statement that it was “concerned about [Hoeper’s] mental stability.” Hoeper is correct that many of the Air Wisconsin officials who attended the meeting at headquarters might not have framed their concerns in terms of “men-tal stability.” LaWare, for instance, testified that “[t]hose weren’t the words that [he] would have anticipated” when he directed Doyle to call the TSA. App. 272. But the officials who attended the meeting did harbor concerns about Hoeper’s mental state: They knew he had just “blown up,” and they worried about what he might do next. It would be inconsistent with the ATSA’s text and purpose to expose Air Wisconsin to liability because its employee could have chosen a slightly better phrase than “mental stability” to articulate its concern. Just as “[m]inor inaccuracies do not amount to falsity” in the defamation context, “so long as ‘the substance, the gist, the sting, of the libelous charge be justified,’ ” Masson, 501 U. S., at 517, a statement that would otherwise qualify for ATSA immunity cannot lose that immunity because of some minor imprecision, so long as “the gist” of the statement is accurate. Doyle’s statements to the TSA accu-rately conveyed “the gist” of the situation; it is irrelevant whether trained lawyers or judges might with the luxury of time have chosen more precise words. Hoeper’s overarching factual theory appears to be that members of the BAe-146 team, including Doyle and Schuer-man, harbored personal animosity toward him, which caused them to manipulate the proficiency tests in order to fail him. But even if Hoeper were correct aboutall this (and we express no view on that question), we do not see why it would have made him any less a threat in the eyes of a reasonable security officer. As between two employees—one who thinks he is being fired because of his inadequate skills, another who thinks he is being fired because his employer hates him—the latter is presumably more, not less, likely to lash out in anger. The partial dissent argues that Doyle’s reference to Hoeper’s “mental stability” was so egregious as to make his report to the TSA the basis of a $1.2 million defamation judgment. We disagree. While lawyers and judges may in some contexts apply the label “mentally unstable” to people suffering from serious mental illnesses, see post, at 4 (Scalia, J., concurring in part and dissenting in part), that is hardly the only manner in which the label is used. A holding that Air Wisconsin lost its ATSA immunity by virtue of Doyle’s failure to be aware of every connotation of the phrase “mental stability” would eviscerate the immunity provision. All of us from time to time use words that, on reflection, we might modify. If such slips of the tongue could give rise to major financial liability, no airline would contact the TSA (or permit its employees to do so) without running by its lawyers the text of its proposed disclosure—exactly the kind of hesitation that Congress aimed to avoid. The partial dissent further argues that Hoeper’s “display of anger” made him no more a threat than “millions of perfectly harmless air travelers.” Post, at 4. But Hoeper did not just lose his temper; he lost it in circumstances that he knew would lead to his firing, which he regarded as the culmination of a vendetta against him. And he was not just any passenger; he was an FFDO, which meant that he could plausibly have been carrying a firearm. In short, Hoeper was not some traveling businessman who yelled at a barista in a fit of pique over a badly brewed cup of coffee. Finally, the partial dissent relies on an expert’s testimony “that Hoeper’s behavior did not warrant any report to the TSA.” Post, at 4 (citing App. 356). But the expert appears to have based that statement on an outdated understanding of reporting obligations that is flatly at odds with the ATSA. Prior to the ATSA, “airlines were responsible for assessing and investigating possible threats to airline security.” 2012 WL 907764, *14 (Eid, J., concurring in part and dissenting in part). But the ATSA shifted that responsibility to the TSA, creating a policy “known as ‘when in doubt, report.’ ” Ibid.; see supra, at 9. The expert who believed that Hoeper’s conduct did not warrant a report to the TSA also believed that airlines have “an obligation . . . to filter out . . . the low noise from . . . what’s significant” in reporting threats. App. 356. That understanding does not comport with the policy that Congress chose to enact. The Colorado Supreme Court recognized that even if the facts are viewed in the light most favorable to Hoeper, Air Wisconsin “would likely be immune” had it “reported that Hoeper . . . knew he would be terminated soon, that he had acted irrationally at the training three hours earlier and ‘blew up’ at test administrators, and that he was an FFDO pilot.” 2012 WL 907764, *8. But the court erred in parsing so finely the distinctions between these hypothetical statements and the ones that Air Wisconsin actually made. The minor differences are, for the reasons we have explained, immaterial as a matter of law in determining Air Wisconsin’s ATSA immunity. By incorporating the actual malice standard into §44941(b), Congress meant to give air carriers the “ ‘breathing space’ ” to report potential threats to security officials without fear of civil liability for a few inaptly chosen words. New York Times, 376 U. S., at 272. To hold Air Wisconsin liable for minor misstatements or loose wording would undermine that purpose and disregard the statutory text.* * * The judgment of the Supreme Court of Colorado is therefore reversed, and the case is remanded for proceedings not inconsistent with this opinion.It is so ordered.Notes1 Air Wisconsin agrees that it bears responsibility for Doyle’s statements. 2012 WL 907764, *2, *16, n. 2 (Colo., Mar. 19, 2012).2 The ATSA immunity provision specifies that “[a]ny air carrier . . . or any employee of an air carrier . . . who makes a voluntary disclosureof any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism, . . . to any employee or agent of the Department of Transportation, the Department of Justice, any Federal, State, or local law enforcement officer, or any airport or airline security officer shall not be civilly liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision of any State, for such disclosure.”.3 These are very different inquiries. Suppose the TSA receives the following tip: “My adulterous husband is carrying a gun onto a flight.” Whether the husband is adulterous will presumably have no effect on the TSA’s assessment of any security risk that he poses. So if the word “adulterous” is false, the caller may still be entitled to ATSA immunity. But any falsity as to that word obviously would affect the husband’s reputation in the community, so it would be material in the context of a defamation claim.4 We “recognize the prudence . . . of allowing the lower courts ‘to undertake [a fact-intensive inquiry] in the first instance.’ ” v. ,. Here, however, we conclude that another prudential consideration—the need for clear guidance on a novel but important question of federal law—weighs in favor of our applying the ATSA immunity standard. Cf. v. , (“[T ]his Court’s role in marking out the limits of [a ] standard through the process of case-by-case adjudication is of special importance”).5 See Tr. of Oral Arg. 42–43 (concession by Hoeper’s counsel that “it would have been true for [Air Wisconsin] to say, look, we’re calling to let you know, because Mr. Hoeper’s an FFDO, we don’t have any reason to believe that he has gun with him, but we can’t tell for sure, so we just thought we would tell you, in case you have any questions and want to investigate further”).6 Hoeper also takes issue with Air Wisconsin’s statement that it was “concerned about . . . the whereabouts of his firearm,” App. to Pet. for Cert. 111a. But his arguments concerning this statement are the same as those concerning the statement that he “may [have] been armed,” ,and we reject them for the same reasons.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus AIR WISCONSIN AIRLINES CORP. v. HOEPER certiorari to the supreme court of colorado No. 12–315. Argued December 9, 2013—Decided January 27, 2014 Respondent Hoeper was a pilot for petitioner Air Wisconsin Airlines Corp. When Air Wisconsin stopped flying from Hoeper’s home base on aircraft that he was certified to fly, he needed to become certified on a different type of aircraft to keep his job. After Hoeper failed in his first three attempts to gain certification, Air Wisconsin agreed to give him a fourth and final chance. But he performed poorly during a required training session in a simulator. Hoeper responded angrily to this failure—raising his voice, tossing his headset, using profanity, and accusing the instructor of “railroading the situation.” The instructor called an Air Wisconsin manager, who booked Hoeper on a flight from the test location to Hoeper’s home in Denver. Several hours later, the manager discussed Hoeper’s behavior with other airline officials. The officials discussed Hoeper’s outburst, his impending termination, the history of assaults by disgruntled airline employees, and the chance that—because Hoeper was a Federal Flight Deck Officer (FFDO), permitted “to carry a firearm while engaged in providing air transportation,” 49 U. S. C. §44921(f)(1)—he might be armed. At the end of the meeting, an airline executive made the decision to notify the Transportation Security Administration (TSA) of the situation. The manager who had received the initial report from Hoeper’s instructor made the call to the TSA. During that call, according to the jury, he made two statements: first, that Hoeper “was an FFDO who may be armed” and that the airline was “concerned about his mental stability and the whereabouts of his firearm”; and second, that an “[u]nstable pilot in [the] FFDO program was terminated today.” In response, the TSA removed Hoeper from his plane, searched him, and questioned him about the location of his gun. Hoeper eventually boarded a later flight to Denver, and Air Wisconsin fired him the next day. Hoeper sued for defamation in Colorado state court. Air Wisconsin moved for summary judgment and later for a directed verdict, relying on the Aviation and Transportation Security Act (ATSA), which grants airlines and their employees immunity against civil liability for reporting suspicious behavior, 49 U. S. C. §44941(a), except where such disclosure is “made with actual knowledge that the disclosure was false, inaccurate, or misleading” or “made with reckless disregard as to the truth or falsity of that disclosure,” §44941(b). The trial court denied the motions and submitted the ATSA immunity question to the jury. The jury found for Hoeper on the defamation claim. The State Supreme Court affirmed. It held that the trial court erred in submitting the immunity question to the jury but that the error was harmless. Laboring under the assumption that even true statements do not qualify for ATSA immunity if they are made recklessly, the court held that Air Wisconsin was not entitled to immunity because its statements to the TSA were made with reckless disregard of their truth or falsity. Held: 1. ATSA immunity may not be denied to materially true statements. . (a) The ATSA immunity exception is patterned after the actual malice standard of New York Times Co. v. Sullivan, 376 U.S. 254, which requires material falsity. See, e.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517. Because the material falsity requirement was settled when the ATSA was enacted, Congress presumably meant to incorporate it into the ATSA’s immunity exception and did not mean to deny ATSA immunity to true statements made recklessly. This presumption is not rebutted by other indicia of statutory meaning. Section 44941(b)(1) requires falsity, and §44941(b)(2) simply extends the immunity exception from knowing falsehoods to reckless ones. Denying immunity for substantially true reports, on the theory that the person making the report had not yet gathered enough information to be certain of its truth, would defeat the purpose of ATSA immunity: to ensure that air carriers and their employees do not hesitate to provide the TSA with needed information. . (b) Hoeper’s arguments that the State Supreme Court’s judgment should be affirmed notwithstanding its misapprehension of ATSA’s immunity standard are unpersuasive. Hoeper claims that Air Wisconsin did not argue the truth of its statements in asserting immunity, but Air Wisconsin contended in the state court that ATSA’s immunity exception incorporates the New York Times actual malice standard, which requires material falsity. And the State Supreme Court did not perform the requisite analysis of material falsity in finding the record sufficient to support the defamation verdict. A court’s deferential review of jury findings cannot substitute for its own analysis of the record; the jury was instructed only to determine falsity, not materiality; and applying the material falsity standard to a defamation claim is quite different from applying it to ATSA immunity. . 2. Under the correct material falsity analysis, Air Wisconsin is entitled to immunity as a matter of law. . (a) In the defamation context, a materially false statement is one that “ ‘would have a different effect on the mind of the reader [or listener] from that which the . . . truth would have produced.’ ” Masson, 501 U. S., at 517. This standard suffices in the ATSA context as well, so long as the hypothetical reader or listener is a security officer. For purposes of ATSA immunity, a falsehood cannot be material absent a substantial likelihood that a reasonable security officer would consider it important in determining a response to the supposed threat. . (b) Viewing the evidence in the light most favorable to Hoeper, the Court concludes as a matter of law that any falsehoods in Air Wisconsin’s statement to the TSA were not material. First, the Court rejects Hoeper’s argument that Air Wisconsin should have qualified its statement that Hoeper “was an FFDO who may be armed” by noting that it had no reason to think he actually was armed. To the extent that Air Wisconsin’s statement could have been confusing, any such confusion is immaterial, as a reasonable TSA officer—having been told that Hoeper was an FFDO who was upset about losing his job—would have wanted to investigate whether he was armed. To demand more precise wording would vitiate the purpose of ATSA immunity: to encourage air carriers and their employees, often in fast-moving situations and with little time to fine-tune their diction, to provide the TSA immediately with information about potential threats. Second, Air Wisconsin’s statement that Hoeper “was terminated today” was not materially false. While Hoeper had not actually been fired at the time of the statement, everyone involved knew that his firing was imminent. No reasonable TSA officer would care whether an angry, potentially armed airline employee had just been fired or merely knew he was about to meet that fate. Finally, although the details of Hoeper’s behavior during the simulator session may be disputed, it would have been correct even under Hoeper’s version of the facts for Air Wisconsin to report that Hoeper “blew up” during the test. From a reasonable security officer’s perspective, there is no material difference between a statement that Hoeper had “blown up” in a professional setting and a statement that he was unstable. Air Wisconsin’s related statement that it was “concerned about [Hoeper’s] mental stability” is no more troubling. Many of the officials who attended the meeting at airline headquarters might not have framed their concerns in terms of “mental stability,” but it would be inconsistent with the ATSA’s text and purpose to expose Air Wisconsin to liability because the manager who placed the call to the TSA could have chosen a slightly better phrase to articulate the airline’s concern. A statement that would otherwise qualify for ATSA immunity cannot lose that immunity because of some minor imprecision, so long as “the gist” of the statement is accurate, Masson, 501 U. S., at 517. . Reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Alito, JJ., joined, and in which Scalia, Thomas, and Kagan, JJ., joined as to Parts I, II, and III–A. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Thomas and Kagan, JJ., joined.

Section44941(a) of the Aviation and Transportation Security Act (ATSA) authorizes an airline to refuse civil liability for reporting suspicious behavior, but does not attach to "any disclosure made with actual knowledge that the disclosure was false, inaccurate, or misleading" or "with reckless disregard as to the truth or falsity of that disclosure." The Transportation Security Administration (TSA), created by Congress to assess and manage threats against air travel, created the Transportation Security Act (Act) to ensure that theTSA would be informed of potential threats. In light of Hoeper, his former employer, Air Wisconsin Airlines Corporation, and his impending termination, the chance that he might be armed, and the history of assaults by disgruntled airline employees, LaWare decided that the airline needed to make a call to the TSA to let the authorities know the status of the situation. Doyle offered to make the call, and Hoesper made two statements to the tasseling company that he was an FFDO who may be armed and that Air Wisconsin was concerned about his mental stability and the whereabouts of his firearm. The TSA responded to the call by ordering the plane to return to the gate. When he stated that the gun was at his home in Denver, a Denver-based federal agent went there to retrieve it. Later that day, he boarded a return flight to Denver, and Air Wisconsin fired him the next day. The Colorado Court of Appeals affirmed, holding that the trial court properly submitted the issue of ATSA immunity to the jury, and that the evidence was sufficient to support the jury's defamation verdict. Held: 1. A statement otherwise eligible for ATSA protection may not be denied such immunity without a determination that a disclosure was materially false. Because the state courts made no such determination, and because any falsehood in the disclosure here would not have affected a reasonable security officer's assessment of the supposed threat, the judgment is reversed. . 2. The Colorado Supreme Court erred in applying the ATSA standard of New York Times Co. v. Sullivan,376 U. S. 254 (1964), which held that actual malice requires material falsity. See, e.g., Philadelphia Newspapers, Inc. v. Hepps,,. Since a public official cannot recover for a defamatory falsehood relating to his official conduct unless he proves that the statement was made withactual malice, i.e., with knowledge that it was false or with reckless disregard of whether it is false or not, the actual malice standard does not apply to materially true statements. This interpretation of the statute is not supported by the facts of this case, which were settled when Congress enacted the Act. Nor can it be supported by other indicia of statutory meaning rebutting the presumption that Congress meant to incorporate the settled meaning of actual malice when it incorporated the language of that standard. Here, the first subsection of the Act requires falsity, as a true disclosure cannot have been made "with actual knowledge" that it "was false.... the truth would have produced. The second subsection simply extends the immunity exception from knowing falsehoods to reckless ones, ensuring that an air carrier cannot avoid liability for a baseless report by sticking its head in the sand to avoid actual knowledge of and response to a given threat. Moreover, the second subsection, which denies immunity to any disclosure made without reckless disregard for its truth, simply extends the immunity exemption from knowing falses to reckless ones. Courts cannot decide whether a false statement produced a different effect on the mind of a hypothetical TSA officer without considering the effect of that statement on the TSA officer. Thus, the question is whether, from the perspective of a reasonable airport security officer, there is any material difference between a statement that a person had just "blown up" in a professional setting and one that hewas "[u]nstable.” The proper standard is the understanding that airlines have an obligation to filter out the low noise in reporting threats, and it would defeat this purpose to deny immunity for substantially true reports, on the theory that the person making the report had not yet gathered enough information to be certain of its truth. Although Air Wisconsin may in some contexts apply the label "mentally unstable" to people suffering from serious mental illnesses, that is hardly the only manner in which the label is used. A different manner is used in the context of determining ATSA immu-nity, such as in determining whether an angry, po-tentially armed airline employee had just been fired or merely knew he was about to meet that fate. Pp. 495 U.S. ___. 3. Air Wisconsin agreed that it bears responsibility for the statements in question. However, to the extent that the immunity determination belongs to the court, a court's deferential review of jury findings cannot substitute for its own analysis of the record; the jury here did not find that any fals

2013_13-298

https://www.oyez.org/cases/2013/13-298

. The patents at issue in this case disclose a computer-implemented scheme for mitigating “settlement risk” (i.e., the risk that only one party to a financial transaction will pay what it owes) by using a third-party intermediary. The question presented is whether these claims are patent eligible under 35 U. S. C. §101, or are instead drawn to a patent-ineligible abstract idea. We hold that the claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention. We therefore affirm the judgment of the United States Court of Appeals for the Federal Circuit. I A Petitioner Alice Corporation is the assignee of several patents that disclose schemes to manage certain forms of financial risk. [ 1 ] According to the specification largely shared by the patents, the invention “enabl[es] the management of risk relating to specified, yet unknown, future events.” App. 248. The specification further explains that the “invention relates to methods and apparatus, including electrical computers and data processing systems applied to financial matters and risk management.” Id., at 243. The claims at issue relate to a computerized scheme for mitigating “settlement risk”—i.e., the risk that only one party to an agreed-upon financial exchange will satisfy its obligation. In particular, the claims are designed to facilitate the exchange of financial obligations between two parties by using a computer system as a third-party intermediary. Id., at 383–384. [ 2 ] The intermediary creates “shadow” credit and debit records (i.e., account ledgers) that mirror the balances in the parties’ real-world accounts at “exchange institutions” (e.g., banks). The intermediary updates the shadow records in real time as transactions are entered, allowing “only those transactions for which the parties’ updated shadow records indicate sufficient resources to satisfy their mutual obligations.” 717 F. 3d 1269, 1285 (CA Fed. 2013) (Lourie, J., concurring). At the end of the day, the intermediary instructs the relevant financial institutions to carry out the “permitted” transactions in accordance with the updated shadow records, ibid., thus mitigating the risk that only one party will perform the agreed-upon exchange. In sum, the patents in suit claim (1) the foregoing method for exchanging obligations (the method claims), (2) a computer system configured to carry out the method for exchanging obligations (the system claims), and (3) a computer-readable medium containing program code for performing the method of exchanging obligations (the media claims). All of the claims are implemented using a computer; the system and media claims expressly recite a computer, and the parties have stipulated that the method claims require a computer as well. B Respondents CLS Bank International and CLS Services Ltd. (together, CLS Bank) operate a global network that facilitates currency transactions. In 2007, CLS Bank filed suit against petitioner, seeking a declaratory judgment that the claims at issue are invalid, unenforceable, or not infringed. Petitioner counterclaimed, alleging infringement. Following this Court’s decision in Bilski v. Kappos, 561 U. S. 593 (2010) , the parties filed cross-motions for summary judgment on whether the asserted claims are eligible for patent protection under 35 U. S. C. §101. The District Court held that all of the claims are patent ineligible because they are directed to the abstract idea of “employing a neutral intermediary to facilitate simultaneous exchange of obligations in order to minimize risk.” 768 F. Supp. 2d 221, 252 (DC 2011). A divided panel of the United States Court of Appeals for the Federal Circuit reversed, holding that it was not “manifestly evident” that petitioner’s claims are directed to an abstract idea. 685 F. 3d 1341, 1352, 1356 (2012). The Federal Circuit granted rehearing en banc, vacated the panel opinion, and affirmed the judgment of the District Court in a one-paragraph per curiam opinion. 717 F. 3d, at 1273. Seven of the ten participating judges agreed that petitioner’s method and media claims are patent ineligible. See id., at 1274 (Lourie, J., concurring); id., at 1312–1313 (Rader, C. J., concurring in part and dissenting in part). With respect to petitioner’s system claims, the en banc Federal Circuit affirmed the District Court’s judgment by an equally divided vote. Id., at 1273. Writing for a five-member plurality, Judge Lourie concluded that all of the claims at issue are patent ineligible. In the plurality’s view, under this Court’s decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U. S. ___ (2012), a court must first “identif[y] the abstract idea represented in the claim,” and then determine “whether the balance of the claim adds ‘significantly more.’ ” 717 F. 3d, at 1286. The plurality concluded that petitioner’s claims “draw on the abstract idea of reducing settlement risk by effecting trades through a third-party intermediary,” and that the use of a computer to maintain, adjust, and reconcile shadow accounts added nothing of substance to that abstract idea. Ibid. Chief Judge Rader concurred in part and dissented in part. In a part of the opinion joined only by Judge Moore, Chief Judge Rader agreed with the plurality that petitioner’s method and media claims are drawn to an abstract idea. Id., at 1312–1313. In a part of the opinion joined by Judges Linn, Moore, and O’Malley, Chief Judge Rader would have held that the system claims are patent eligible because they involve computer “hardware” that is “specifically programmed to solve a complex problem.” Id., at 1307. Judge Moore wrote a separate opinion dissenting in part, arguing that the system claims are patent eligible. Id., at 1313–1314. Judge Newman filed an opinion concurring in part and dissenting in part, arguing that all of petitioner’s claims are patent eligible. Id., at 1327. Judges Linn and O’Malley filed a separate dissenting opinion reaching that same conclusion. Ibid. We granted certiorari, 571 U. S. ___ (2013), and now affirm. II Section 101 of the Patent Act defines the subject matter eligible for patent protection. It provides: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U. S. C. §101. “We have long held that this provision contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.” Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U. S. ___, ___ (2013) (slip op., at 11) (internal quotation marks and brackets omitted). We have interpreted §101 and its predecessors in light of this exception for more than 150 years. Bilski, supra, at 601–602; see also O’Reilly v. Morse, 15 How. 62, 112–120 (1854); Le Roy v. Tatham, 14 How. 156, 174–175 (1853). We have described the concern that drives this exclusionary principle as one of pre-emption. See, e.g., Bilski, supra, at 611–612 (upholding the patent “would pre-empt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea”). Laws of nature, natural phenomena, and abstract ideas are “ ‘ “the basic tools of scientific and technological work.” ’ ” Myriad, supra, at ___ (slip op., at 11). “[M]onopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it,” thereby thwarting the primary object of the patent laws. Mayo, supra, at ___ (slip op., at 2); see U. S. Const., Art. I, §8, cl. 8 (Congress “shall have Power . . . To promote the Progress of Science and useful Arts”). We have “repeatedly emphasized this . . . concern that patent law not inhibit further discovery by improperly tying up the future use of” these building blocks of human ingenuity. Mayo, supra, at ___ (slip op., at 16) (citing Morse, supra, at 113). At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law. Mayo, 566 U. S., at ___ (slip op., at 2). At some level, “all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Id., at ___ (slip op., at 2). Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept. See Diamond v. Diehr, 450 U. S. 175, 187 (1981) . “[A]pplication[s]” of such concepts “ ‘to a new and useful end,’ ” we have said, remain eligible for patent protection. Gottschalk v. Benson, 409 U. S. 63, 67 (1972) . Accordingly, in applying the §101 exception, we must distinguish between patents that claim the “ ‘buildin[g] block[s]’ ” of human ingenuity and those that integrate the building blocks into something more, Mayo, 566 U. S., at ___ (slip op., at 20), thereby “transform[ing]” them into a patent-eligible invention, id., at ___ (slip op., at 3). The former “would risk disproportionately tying up the use of the underlying” ideas, id., at ___ (slip op., at 4), and are therefore ineligible for patent protection. The latter pose no comparable risk of pre-emption, and therefore remain eligible for the monopoly granted under our patent laws. III In Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U. S. ___ (2012), we set forth a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts. First, we determine whether the claims at issue are directed to one of those patent-ineligible concepts. Id., at ___ (slip op., at 8). If so, we then ask, “[w]hat else is there in the claims before us?” Id., at ___ (slip op., at 9). To answer that question, we consider the elements of each claim both individually and “as an ordered combination” to determine whether the additional elements “transform the nature of the claim” into a patent-eligible application. Id., at ___ (slip op., at 10, 9). We have described step two of this analysis as a search for an “ ‘inventive concept’ ”—i.e., an element or combination of elements that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Id., at ___ (slip op., at 3). [ 3 ] A We must first determine whether the claims at issue are directed to a patent-ineligible concept. We conclude that they are: These claims are drawn to the abstract idea of intermediated settlement. The “abstract ideas” category embodies “the longstanding rule that ‘[a]n idea of itself is not patentable.’ ” Benson, supra, at 67 (quoting Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498, 507 (1874)); see also Le Roy, supra, at 175 (“A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right”). In Benson, for example, this Court rejected as ineligible patent claims involving an algorithm for converting binary-coded decimal numerals into pure binary form, holding that the claimed patent was “in practical effect . . . a pat- ent on the algorithm itself.” 409 U. S., at 71–72. And in Parker v. Flook, 437 U. S. 584 –595 (1978), we held that a mathematical formula for computing “alarm limits” in a catalytic conversion process was also a patent-ineligible abstract idea. We most recently addressed the category of abstract ideas in Bilski v. Kappos, 561 U. S. 593 (2010) . The claims at issue in Bilski described a method for hedging against the financial risk of price fluctuations. Claim 1 recited a series of steps for hedging risk, including: (1) initiating a series of financial transactions between providers and consumers of a commodity; (2) identifying market participants that have a counterrisk for the same commodity; and (3) initiating a series of transactions between those market participants and the commodity provider to balance the risk position of the first series of consumer transactions. Id., at 599. Claim 4 “pu[t] the concept articulated in claim 1 into a simple mathematical formula.” Ibid. The remaining claims were drawn to examples of hedging in commodities and energy markets. “[A]ll members of the Court agree[d]” that the patent at issue in Bilski claimed an “abstract idea.” Id., at 609; see also id., at 619 (Stevens, J., concurring in judgment). Specifically, the claims described “the basic concept of hedging, or protecting against risk.” Id., at 611. The Court explained that “ ‘[h]edging is a fundamental economic practice long prevalent in our system of commerce and taught in any introductory finance class.’ ” Ibid. “The concept of hedging” as recited by the claims in suit was therefore a patent-ineligible “abstract idea, just like the algorithms at issue in Benson and Flook.” Ibid. It follows from our prior cases, and Bilski in particular, that the claims at issue here are directed to an abstract idea. Petitioner’s claims involve a method of exchanging financial obligations between two parties using a third-party intermediary to mitigate settlement risk. The intermediary creates and updates “shadow” records to reflect the value of each party’s actual accounts held at “exchange institutions,” thereby permitting only those transactions for which the parties have sufficient resources. At the end of each day, the intermediary issues irrevocable instructions to the exchange institutions to carry out the permitted transactions. On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk. Like the risk hedging in Bilski, the concept of intermediated settlement is “ ‘a fundamental economic practice long prevalent in our system of commerce.’ ” Ibid.; see, e.g., Emery, Speculation on the Stock and Produce Exchanges of the United States, in 7 Studies in History, Economics and Public Law 283, 346–356 (1896) (discussing the use of a “clearing-house” as an intermediary to reduce settlement risk). The use of a third-party intermediary (or “clearing house”) is also a building block of the modern economy. See, e.g., Yadav, The Problematic Case of Clearinghouses in Complex Markets, 101 Geo. L. J. 387, 406–412 (2013); J. Hull, Risk Management and Financial Institutions 103–104 (3d ed. 2012). Thus, intermediated settlement, like hedging, is an “abstract idea” beyond the scope of §101. Petitioner acknowledges that its claims describe intermediated settlement, see Brief for Petitioner 4, but rejects the conclusion that its claims recite an “abstract idea.” Drawing on the presence of mathematical formulas in some of our abstract-ideas precedents, petitioner contends that the abstract-ideas category is confined to “preexisting, fundamental truth[s]” that “ ‘exis[t ] in principle apart from any human action.’ ” Id., at 23, 26 (quoting Mayo, 566 U. S., at ___ (slip op., at 8)). Bilski belies petitioner’s assertion. The concept of risk hedging we identified as an abstract idea in that case cannot be described as a “preexisting, fundamental truth.” The patent in Bilski simply involved a “series of steps instructing how to hedge risk.” 561 U. S., at 599. Al-though hedging is a longstanding commercial practice, id., at 599, it is a method of organizing human activity, not a “truth” about the natural world “ ‘that has always existed,’ ” Brief for Petitioner 22 (quoting Flook, supra, at 593, n. 15). One of the claims in Bilski reduced hedging to a mathematical formula, but the Court did not assign any special significance to that fact, much less the sort of talismanic significance petitioner claims. Instead, the Court grounded its conclusion that all of the claims at issue were abstract ideas in the understanding that risk hedging was a “ ‘fundamental economic practice.’ ” 561 U. S., at 611. In any event, we need not labor to delimit the precise contours of the “abstract ideas” category in this case. It is enough to recognize that there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here. Both are squarely within the realm of “abstract ideas” as we have used that term. B Because the claims at issue are directed to the abstract idea of intermediated settlement, we turn to the second step in Mayo’s framework. We conclude that the method claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent-eligible invention. 1 At Mayo step two, we must examine the elements of the claim to determine whether it contains an “ ‘inventive concept’ ” sufficient to “transform” the claimed abstract idea into a patent-eligible application. 566 U. S., at ___, ___ (slip op., at 3, 11). A claim that recites an abstract idea must include “additional features” to ensure “that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].” Id., at ___ (slip op., at 8–9). Mayo made clear that transformation into a patent-eligible application requires “more than simply stat[ing] the [abstract idea] while adding the words ‘apply it.’ ” Id., at ___ (slip op., at 3). Mayo itself is instructive. The patents at issue in Mayo claimed a method for measuring metabolites in the bloodstream in order to calibrate the appropriate dosage of thiopurine drugs in the treatment of autoimmune dis- eases. Id., at ___ (slip op., at 4–6). The respondent in that case contended that the claimed method was a patent-eligible application of natural laws that describe the relationship between the concentration of certain metabolites and the likelihood that the drug dosage will be harmful or ineffective. But methods for determining metabolite levels were already “well known in the art,” and the process at issue amounted to “nothing significantly more than an instruction to doctors to apply the applicable laws when treating their patients.” Id., at ___ (slip op., at 10). “Simply appending conventional steps, specified at a high level of generality,” was not “enough” to supply an “ ‘inventive concept.’ ” Id., at ___, ___, ___ (slip op., at 14, 8, 3). The introduction of a computer into the claims does not alter the analysis at Mayo step two. In Benson, for example, we considered a patent that claimed an algorithm implemented on “a general-purpose digital computer.” 409 U. S., at 64. Because the algorithm was an abstract idea, see supra, at 8, the claim had to supply a “ ‘new and use-ful’ ” application of the idea in order to be patent eligible. 409 U. S., at 67. But the computer implementation did not supply the necessary inventive concept; the process could be “carried out in existing computers long in use.” Ibid. We accordingly “held that simply implementing a mathematical principle on a physical machine, namely a computer, [i]s not a patentable application of that principle.” Mayo, supra, at ___ (slip op., at 16) (citing Benson, supra, at 64). Flook is to the same effect. There, we examined a computerized method for using a mathematical formula to adjust alarm limits for certain operating conditions (e.g., temperature and pressure) that could signal inefficiency or danger in a catalytic conversion process. 437 U. S., at 585–586. Once again, the formula itself was an abstract idea, see supra, at 8, and the computer implementation was purely conventional. 437 U. S., at 594 (noting that the “use of computers for ‘automatic monitoring-alarming’ ” was “well known”). In holding that the process was patent ineligible, we rejected the argument that “implement[ing] a principle in some specific fashion” will “automatically fal[l] within the patentable subject matter of §101.” Id., at 593. Thus, “Flook stands for the proposition that the prohibition against patenting abstract ideas cannot be circumvented by attempting to limit the use of [the idea] to a particular technological environment.” Bilski, 561 U. S., at 610–611 (internal quotation marks omitted). In Diehr, 450 U. S. 175 , by contrast, we held that a computer-implemented process for curing rubber was patent eligible, but not because it involved a computer. The claim employed a “well-known” mathematical equation, but it used that equation in a process designed to solve a technological problem in “conventional industry practice.” Id., at 177, 178. The invention in Diehr used a “thermocouple” to record constant temperature measure-ments inside the rubber mold—something “the industry ha[d] not been able to obtain.” Id., at 178, and n. 3. The temperature measurements were then fed into a computer, which repeatedly recalculated the remaining cure time by using the mathematical equation. Id., at 178–179. These additional steps, we recently explained, “transformed the process into an inventive application of the formula.” Mayo, supra, at ___ (slip op., at 12). In other words, the claims in Diehr were patent eligible because they improved an existing technological process, not because they were implemented on a computer. These cases demonstrate that the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Stating an abstract idea “while adding the words ‘apply it’ ” is not enough for patent eligibility. Mayo, supra, at ___ (slip op., at 3). Nor is limiting the use of an abstract idea “ ‘to a particular technological environment.’ ” Bilski, supra, at 610–611. Stating an abstract idea while adding the words “apply it with a computer” simply combines those two steps, with the same deficient result. Thus, if a patent’s recitation of a computer amounts to a mere instruction to “implemen[t]” an abstract idea “on . . . a computer,” Mayo, supra, at ___ (slip op., at 16), that addition cannot impart patent eligibility. This conclusion accords with the pre-emption concern that undergirds our §101 jurisprudence. Given the ubiquity of computers, see 717 F. 3d, at 1286 (Lourie, J., concurring), wholly generic computer implementation is not generally the sort of “additional featur[e]” that provides any “practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.” Mayo, 566 U. S., at ___ (slip op., at 8–9). The fact that a computer “necessarily exist[s] in the physical, rather than purely conceptual, realm,” Brief for Petitioner 39, is beside the point. There is no dispute that a computer is a tangible system (in §101 terms, a “machine”), or that many computer-implemented claims are formally addressed to patent-eligible subject matter. But if that were the end of the §101 inquiry, an applicant could claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept. Such a result would make the determination of patent eligibility “depend simply on the draftsman’s art,” Flook, supra, at 593, thereby eviscerating the rule that “ ‘[l]aws of nature, natural phenomena, and abstract ideas are not patentable,’ ” Myriad, 569 U. S., at ___ (slip op., at 11). 2 The representative method claim in this case recites the following steps: (1) “creating” shadow records for each counterparty to a transaction; (2) “obtaining” start-of-day balances based on the parties’ real-world accounts at exchange institutions; (3) “adjusting” the shadow records as transactions are entered, allowing only those transactions for which the parties have sufficient resources; and (4) issuing irrevocable end-of-day instructions to the exchange institutions to carry out the permitted transactions. See n. 2, supra. Petitioner principally contends that the claims are patent eligible because these steps “require a substantial and meaningful role for the computer.” Brief for Petitioner 48. As stipulated, the claimed method requires the use of a computer to create electronic records, track multiple transactions, and issue simultaneous instructions; in other words, “[t]he computer is itself the intermediary.” Ibid. (emphasis deleted). In light of the foregoing, see supra, at 11–14, the relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea of intermediated settlement on a generic computer. They do not. Taking the claim elements separately, the function performed by the computer at each step of the process is “[p]urely conventional.” Mayo, supra, at ___ (slip op., at 10) (internal quotation marks omitted). Using a computer to create and maintain “shadow” accounts amounts to electronic recordkeeping—one of the most basic functions of a computer. See, e.g., Benson, 409 U. S., at 65 (noting that a computer “operates . . . upon both new and previously stored data”). The same is true with respect to the use of a computer to obtain data, adjust account balances, and issue automated instructions; all of these computer functions are “well-understood, routine, conventional activit[ies]” previously known to the industry. Mayo, 566 U. S., at ___ (slip op., at 4). In short, each step does no more than require a generic computer to perform generic computer functions. Considered “as an ordered combination,” the computer components of petitioner’s method “ad[d] nothing . . . that is not already present when the steps are considered separately.” Id., at ___ (slip op., at 10). Viewed as a whole, petitioner’s method claims simply recite the concept of intermediated settlement as performed by a generic computer. See 717 F. 3d, at 1286 (Lourie, J., concurring) (noting that the representative method claim “lacks any express language to define the computer’s participation”). The method claims do not, for example, purport to improve the functioning of the computer itself. See ibid. (“There is no specific or limiting recitation of . . . improved computer technology . . .”); Brief for United States as Amicus Curiae 28–30. Nor do they effect an improvement in any other technology or technical field. See, e.g., Diehr, 450 U. S., at 177–178. Instead, the claims at issue amount to “nothing significantly more” than an instruction to apply the abstract idea of intermediated settlement using some unspecified, generic computer. Mayo, 566 U. S., at ___ (slip op., at 10). Under our precedents, that is not “enough” to transform an abstract idea into a patent-eligible invention. Id., at ___ (slip op., at 8). C Petitioner’s claims to a computer system and a computer-readable medium fail for substantially the same rea- sons. Petitioner conceded below that its media claims rise or fall with its method claims. En Banc Response Brief for Defendant-Appellant in No. 11–1301 (CA Fed.) p. 50, n. 3. As to its system claims, petitioner emphasizes that those claims recite “specific hardware” configured to perform “specific computerized functions.” Brief for Petitioner 53. But what petitioner characterizes as specific hardware—a “data processing system” with a “communications controller” and “data storage unit,” for example, see App. 954, 958, 1257—is purely functional and generic. Nearly every computer will include a “communications controller” and “data storage unit” capable of performing the basic calculation, storage, and transmission functions required by the method claims. See 717 F. 3d, at 1290 (Lourie, J., concurring). As a result, none of the hardware recited by the system claims “offers a meaningful limitation beyond generally linking ‘the use of the [method] to a particular technological environment,’ that is, implementation via computers.” Id., at 1291 (quoting Bilski, 561 U. S., at 610–611). Put another way, the system claims are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea. This Court has long “warn[ed] . . . against” interpreting §101 “in ways that make patent eligibility ‘depend simply on the draftsman’s art.’ ” Mayo, supra, at ___ (slip op., at 3) (quoting Flook, 437 U. S., at 593); see id., at 590 (“The concept of patentable subject matter under §101 is not ‘like a nose of wax which may be turned and twisted in any direction . . .’ ”). Holding that the system claims are patent eligible would have exactly that result. Because petitioner’s system and media claims add nothing of substance to the underlying abstract idea, we hold that they too are patent ineligible under §101. * * * For the foregoing reasons, the judgment of the Court of Appeals for the Federal Circuit is affirmed. It is so ordered. Notes 1 The patents at issue are United States Patent Nos. 5,970,479 (the ’479 patent), 6,912,510, 7,149,720, and 7,725,375. 2 The parties agree that claim 33 of the ’479 patent is representative of the method claims. Claim 33 recites: “A method of exchanging obligations as between parties, each party holding a credit record and a debit record with an exchange institution, the credit records and debit records for exchange of predetermined obligations, the method comprising the steps of: “(a) creating a shadow credit record and a shadow debit record for each stakeholder party to be held independently by a supervisory institution from the exchange institutions; “(b) obtaining from each exchange institution a start-of-day balance for each shadow credit record and shadow debit record; “(c) for every transaction resulting in an exchange obligation, the supervisory institution adjusting each respective party’s shadow credit record or shadow debit record, allowing only these transactions that do not result in the value of the shadow debit record being less than the value of the shadow credit record at any time, each said adjustment taking place in chronological order, and “(d) at the end-of-day, the supervisory institution instructing on[e] of the exchange institutions to exchange credits or debits to the credit record and debit record of the respective parties in accordance with the adjustments of the said permitted transactions, the credits and debits being irrevocable, time invariant obligations placed on the exchange institutions.” App. 383–384. 3 Because the approach we made explicit in Mayo considers all claim elements, both individually and in combination, it is consistent with the general rule that patent claims “must be considered as a whole.” Diamond v. Diehr, ; see Parker v. Flook, (“Our approach . . . is . . . not at all inconsistent with the view that a patent claim must be considered as a whole”).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus ALICE CORPORATION PTY. LTD. v. CLS BANK INTERNATIONAL et al. certiorari to the united states court of appeals for the federal circuit No. 13–298. Argued March 31, 2014—Decided June 19, 2014 Petitioner Alice Corporation is the assignee of several patents that disclose a scheme for mitigating “settlement risk,” i.e., the risk that only one party to an agreed-upon financial exchange will satisfy its obligation. In particular, the patent claims are designed to facilitate the exchange of financial obligations between two parties by using a computer system as a third-party intermediary. The patents in suit claim (1) a method for exchanging financial obligations, (2) a computer system configured to carry out the method for exchanging obligations, and (3) a computer-readable medium containing program code for performing the method of exchanging obligations. Respondents (together, CLS Bank), who operate a global network that facilitates currency transactions, filed suit against petitioner, arguing that the patent claims at issue are invalid, unenforceable, or not infringed. Petitioner counterclaimed, alleging infringement. After Bilski v. Kappos, 561 U.S. 593, was decided, the District Court held that all of the claims were ineligible for patent protection under 35 U. S. C. §101 because they are directed to an abstract idea. The en banc Federal Circuit affirmed. Held: Because the claims are drawn to a patent-ineligible abstract idea, they are not patent eligible under §101. . (a) The Court has long held that §101, which defines the subject matter eligible for patent protection, contains an implicit exception for ‘ “[l]aws of nature, natural phenomena, and abstract ideas.’ ” Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U. S. ___, ___. In applying the §101 exception, this Court must distinguish patents that claim the “ ‘buildin[g] block[s]’ ” of human ingenuity, which are ineligible for patent protection, from those that integrate the building blocks into something more, see Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U. S. ___, ___, thereby “transform[ing]” them into a patent-eligible invention, id., at ___. . (b) Using this framework, the Court must first determine whether the claims at issue are directed to a patent-ineligible concept. 566 U. S., at ___. If so, the Court then asks whether the claim’s elements, considered both individually and “as an ordered combination,” “transform the nature of the claim” into a patent-eligible application. Id., at ___. . (1) The claims at issue are directed to a patent-ineligible concept: the abstract idea of intermediated settlement. Under “the longstanding rule that ‘[a]n idea of itself is not patentable,’ ” Gottschalk v. Benson, 409 U.S. 63, 67, this Court has found ineligible patent claims involving an algorithm for converting binary-coded decimal numerals into pure binary form, id., at 71–72; a mathematical formula for computing “alarm limits” in a catalytic conversion process, Parker v. Flook, 437 U.S. 584, 594–595; and, most recently, a method for hedging against the financial risk of price fluctuations, Bilski, 561 U. S, at 599. It follows from these cases, and Bilski in particular, that the claims at issue are directed to an abstract idea. On their face, they are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk. Like the risk hedging in Bilski, the concept of intermediated settlement is “ ‘a fundamental economic practice long prevalent in our system of commerce,’ ” ibid., and the use of a third-party intermediary (or “clearing house”) is a building block of the modern economy. Thus, intermediated settlement, like hedging, is an “abstract idea” beyond §101’s scope. . (2) Turning to the second step of Mayo’s framework: The method claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent-eligible invention. . (i) “Simply appending conventional steps, specified at a high level of generality,” to a method already “well known in the art” is not “enough” to supply the “ ‘inventive concept’ ” needed to make this transformation. Mayo, supra, at ___, ___. The introduction of a computer into the claims does not alter the analysis. Neither stating an abstract idea “while adding the words ‘apply it,’ ” Mayo, supra, at ___, nor limiting the use of an abstract idea “ ‘to a particular technological environment,’ ” Bilski, supra, at 610–611, is enough for patent eligibility. Stating an abstract idea while adding the words “apply it with a computer” simply combines those two steps, with the same deficient result. Wholly generic computer implementation is not generally the sort of “additional featur[e]” that provides any “practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.” Mayo, supra, at ___. . (ii) Here, the representative method claim does no more than simply instruct the practitioner to implement the abstract idea of intermediated settlement on a generic computer. Taking the claim elements separately, the function performed by the computer at each step—creating and maintaining “shadow” accounts, obtaining data, adjusting account balances, and issuing automated instructions—is “[p]urely ‘conventional. ’ ” Mayo, 566 U. S., at ___. Considered “as an ordered combination,” these computer components “ad[d] nothing . . . that is not already present when the steps are considered separately.” Id., at ___. Viewed as a whole, these method claims simply recite the concept of intermediated settlement as performed by a generic computer. They do not, for example, purport to improve the functioning of the computer itself or effect an improvement in any other technology or technical field. An instruction to apply the abstract idea of intermediated settlement using some unspecified, generic computer is not “enough” to transform the abstract idea into a patent-eligible invention. Id., at ___. . (3) Because petitioner’s system and media claims add nothing of substance to the underlying abstract idea, they too are patent ineligible under §101. Petitioner conceded below that its media claims rise or fall with its method claims. And the system claims are no different in substance from the method claims. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea. This Court has long “warn[ed] . . . against” interpreting §101 “in ways that make patent eligibility ‘depend simply on the draftsman’s art.’ ” Mayo, supra, at ___. Holding that the system claims are patent eligible would have exactly that result. . 717 F.3d 1269, affirmed. Thomas, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined.

Petitioner is the assignee of several patents that disclose schemes to manage certain forms of financial risk. The claims at issue are designed to facilitate the exchange of financial obligations between two parties by using a third-party intermediary to mitigate settlement risk. The claims are implemented using a computer; the system and media claims expressly recite a computer, and the parties have stipulated that the method claims require a computer as well. Respondents CLS Bank International and CLS Services Ltd. (together, CLS Bank) operate a global network that facilitates currency transactions. Petitioner counterclaimed, alleging infringement. Following Bilski v. Kappos, 561 U. S. 593 (2010), the parties filed cross-motions for summary judgment on whether the asserted claims are eligible for patent protection under 35 U.S. C. §101. The District Court held that all of the claims are patent ineligible because they are directed to the abstract idea of employing a neutral intermediary to facilitate simultaneous exchange of obligations in order to minimize risk. However, the Court of Appeals reversed, holding that it was not manifestly evident that petitioner's claims were directed to an abstract idea. Held: The patent-ineligible claims are not patent eligible. . (a) The claims in suit claim (1) the foregoing method for exchanging obligations (the method claims), (2) a computer system configured to carry out such method (the system claims), and a computer-readable medium containing program code for performing the method of exchanging obligations. All the claims implement a computer. In sum, the claims claim the following steps for hedging against the financial risk of price fluctuations: creating shadow records for each counterparty to a transaction; (obtaining) start-of-day balances based on the parties' real-world accounts at exchange institutions; (3) applying the method to a series of transactions between providers and consumers of a commodity; and (4) identifying market participants that have a counterrisk for the same commodity. Claim 33 of the method claim is representative of such claims. See id., at ___ (slip op., at 6). The claim elements are grouped individually and as an ordered combination to determine whether the additional elements transform the nature of the claim into a patent-eligible application. This analysis is a search for an inventive concept or combination that issufficient to ensure that the patent in practice amounts to significantly more than a patent upon the patentineligible concept itself. Steps 3 and 4 of this analysis do not require a substantial and meaningful role for the computer, but simply require the use of a computer to create electronic records, track multiple transactions, and issue simultaneous instructions. Taking the claim elements separately, the function performed by the computer at each step of the process is conventional. It is true that a computer is the intermediary, but the same true with respect to all other components. Viewing all of petitioner claims separately, it is clear that nothing in the above steps is more than an instruction to apply the abstract concept of intermediated settlement using some unspecified, generic computer.... If a patent recitation amounts to a mere instruction to "implemen[t] [the abstract idea]on... a computer," that addition cannot impart patent eligibility. Moreover, if a patent introduction into the claims does not alter the analysis at Mayo step two, it will make the determination of patent eligibility depend simply on the draftsman's art. Flook is to the same effect, since the claims do not simply instruct the practitioner to implement the abstract ideas in the understanding that risk hedging was a fundamental economic practice. Although hedging is a longstanding commercial practice, id., 599, it cannot be said that the concept of patentable subject matter under §101 is not a truth about the natural world that has always existed. Here, taking the claims separately into account amounts to nothing more, and does not effect an improvement in any other technology or technical field. Similarly, if the claims in question are patent eligible because merely requiring generic computer implementation fails to transform those abstract ideas into patentable inventions, they pose no comparable risk of pre-emption, and therefore remain eligible for the monopoly granted under the patent laws. Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 S. ___ (CA Fed. 2013). Pp. 475-476. (b) Petitioner and its media claims are drawn to the Abstract idea of intermediaryated settlement, i.e., a method for avoiding settlement risk by exchanging financial obligations with a third party, and thus are thus ineligible for patent protection. They do not, in substance, do more than simply instruct a practitioner in the abstract notion of intermediation on a generic computer; they do not. See, e.g., Mayo, supra, at ___. Even assuming that the claims have a generic implementation, they fail to transform that abstract idea into one that is patent eligible,

2013_12-842

https://www.oyez.org/cases/2013/12-842

. We must decide whether the Foreign Sovereign Immu-nities Act of 1976 (FSIA or Act), 28 U. S. C. §§1330, 1602 et seq., limits the scope of discovery available to a judgment creditor in a federal postjudgment execution proceeding against a foreign sovereign. I. Background In 2001, petitioner, Republic of Argentina, defaulted on its external debt. In 2005 and 2010, it restructured most of that debt by offering creditors new securities (with less favorable terms) to swap out for the defaulted ones. Most bondholders went along. Respondent, NML Capital, Ltd. (NML), among others, did not. NML brought 11 actions against Argentina in the Southern District of New York to collect on its debt, and prevailed in every one.[1] It is owed around $2.5 billion, which Argentina has not paid. Having been unable to collect on its judgments from Argentina, NML has attempted to execute them against Argentina’s property. That postjudgment litigation “has involved lengthy attachment proceedings before the district court and multiple appeals.” EM Ltd. v. Republic of Argentina, 695 F. 3d 201, 203, and n. 2 (CA2 2012) (referring the reader to prior opinions “[f]or additional background on Argentina’s default and the resulting litigation”). Since 2003, NML has pursued discovery of Argentina’s property. In 2010, “ ‘[i]n order to locate Argentina’s assets and accounts, learn how Argentina moves its assets through New York and around the world, and accurately identify the places and times when those assets might be subject to attachment and execution (whether under [United States law] or the law of foreign jurisdictions),’ ” id., at 203 (quoting NML brief), NML served subpoenas on two nonparty banks, Bank of America (BOA) and Banco de la Nación Argentina (BNA), an Argentinian bank with a branch in New York City. For the most part, the two subpoenas target the same kinds of information: documents relating to accounts maintained by or on behalf of Argentina, documents identifying the opening and closing dates of Argentina’s accounts, current balances, transaction histories, records of electronic fund transfers, debts owed by the bank to Argentina, transfers in and out of Argentina’s accounts, and information about transferors and transferees. Argentina, joined by BOA, moved to quash the BOA subpoena. NML moved to compel compliance but, before the court ruled, agreed to narrow its subpoenas by excluding the names of some Argentine officials from the ini-tial electronic-fund-transfer message search. NML also agreed to treat as confidential any documents that the banks so designated. The District Court denied the motion to quash and granted the motions to compel. Approving the subpoenas in principle, it concluded that extraterritorial asset discovery did not offend Argentina’s sovereign immunity, and it reaffirmed that it would serve as a “clearinghouse for information” in NML’s efforts to find and attach Argentina’s assets. App. to Pet. for Cert. 31. But the court made clear that it expected the parties to negotiate further over specific production requests, which, the court said, must include “some reasonable definition of the information being sought.” Id., at 32. There was no point, for instance, in “getting information about something that might lead to attachment in Argentina because that would be useless information,” since no Argentinian court would allow attachment. Ibid. “Thus, the district court . . . sought to limit the subpoenas to discovery that was reasonably calculated to lead to attachable property.” 695 F. 3d, at 204–205. NML and BOA later negotiated additional changes to the BOA subpoena. NML expressed its willingness to narrow its requests from BNA as well, but BNA neither engaged in negotiation nor complied with the subpoena. Only Argentina appealed, arguing that the court’s order transgressed the Foreign Sovereign Immunities Act because it permitted discovery of Argentina’s extraterritorial assets. The Second Circuit affirmed, holding that “because the Discovery Order involves discovery, not attachment of sovereign property, and because it is directed at third-party banks, not at Argentina itself, Argentina’s sovereign immunity is not infringed.” Id., at 205. We granted certiorari. 571 U. S. ___ (2014). II. Analysis A The rules governing discovery in postjudgment execution proceedings are quite permissive. Federal Rule of Civil Procedure 69(a)(2) states that, “[i]n aid of the judgment or execution, the judgment creditor . . . may obtain discovery from any person—including the judgment debtor—as provided in the rules or by the procedure of thestate where the court is located.” See 12 C. Wright, A. Miller, & R. Marcus, Federal Practice and Procedure §3014, p. 160 (2d ed. 1997) (hereinafter Wright & Miller) (court “may use the discovery devices provided in [the federal rules] or may obtain discovery in the manner provided by the practice of the state in which the district court is held”). The general rule in the federal system is that, subject to the district court’s discretion, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. Rule Civ. Proc. 26(b)(1). And New York law entitles judgment creditors to discover “all matter relevant to the satisfaction of [a] judgment,” N. Y. Civ. Prac. Law Ann. §5223 (West 1997), permitting “investigation [of] any person shown to have any light to shed on the subject of the judgment debtor’s assets or their whereabouts,” D. Siegel, New York Practice §509, p. 891 (5th ed. 2011). The meaning of those rules was much discussed at oral argument. What if the assets targeted by the discovery request are beyond the jurisdictional reach of the court to which the request is made? May the court nonetheless permit discovery so long as the judgment creditor shows that the assets are recoverable under the laws of the jurisdictions in which they reside, whether that be Florida or France? We need not take up those issues today, since Argentina has not put them in contention. In the Court of Appeals, Argentina’s only asserted ground for objection to the subpoenas was the Foreign Sovereign Immunities Act. See 695 F. 3d, at 208 (“Argentina argues . . . that the normally broad scope of discovery in aid of execution is limited in this case by principles of sovereign immunity”). And Argentina’s petition for writ of certiorari asked us to decide only whether that Act “imposes [a] limit on a United States court’s authority to order blanket post-judgment execution discovery on the assets of a foreign state used for any activity anywhere in the world.” Pet. for Cert. 14. Plainly, then, this is not a case about the breadth of Rule 69(a)(2).[2] We thus assume without deciding that, as the Government conceded at argument, Tr. of Oral Arg. 24, and as the Second Circuit concluded below, “in a run-of-the-mill execution proceeding . . . the district court would have been within its discretion to order the discovery from third-party banks about the judgment debtor’s assets located outside the United States.” 695 F. 3d, at 208. The single, narrow question before us is whether the Foreign Sovereign Immunities Act specifies a different rule when the judgment debtor is a foreign state. B To understand the effect of the Act, one must know something about the regime it replaced. Foreign sovereign immunity is, and always has been, “a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution.” Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 486 (1983) . Accordingly, this Court’s practice has been to “defe[r] to the decisions of the political branches” about whether and when to exercise judicial power over foreign states. Ibid. For the better part of the last two centuries, the political branch making the determination was the Executive, which typically requested immunity in all suits against friendly foreign states. Id., at 486–487. But then, in 1952, the State Department embraced (in the so-called Tate Letter) the “restrictive” theory of sovereign immunity, which holds that immunity shields only a foreign sovereign’s public, noncommercial acts. Id., at 487, and n. 9. The Tate Letter “thr[ew] immunity determinations into some disarray,” since “political considerations sometimes led the Department to file suggestions of immunity in cases where immunity would not have been available under the restrictive theory.” Republic of Austria v. Altmann, 541 U. S. 677, 690 (2004) (internal quotation marks omitted). Further muddling matters, when in particular cases the State Department did not suggest immunity, courts made immunity determinations “generally by reference to prior State Department decisions.” Verlinden, 461 U. S., at 487. Hence it was that “sovereign immunity decisions were [being] made in two different branches, subject to a variety of factors, sometimes including diplomatic considerations. Not surprisingly, the governing standards were neither clear nor uniformly applied.” Id., at 488. Congress abated the bedlam in 1976, replacing the old executive-driven, factor-intensive, loosely common-law-based immunity regime with the Foreign Sovereign Immunities Act’s “comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state.” Ibid. The key word there—which goes a long way toward deciding this case—is comprehensive. We have used that term often and advisedly to describe the Act’s sweep: “Congress established [in the FSIA] a comprehensive framework for resolving any claim of sovereign immunity.” Altman, 541 U. S., at 699. The Act “compre-hensively regulat[es] the amenability of foreign nations to suit in the United States.” Verlinden, supra, at 493. This means that “[a]fter the enactment of the FSIA, the Act—and not the pre-existing common law—indisputably governs the determination of whether a foreign state is entitled to sovereign immunity.” Samantar v. Yousuf, 560 U. S. 305, 313 (2010) . As the Act itself instructs, “[c]laims of foreign states to immunity should henceforth be decided by courts . . . in conformity with the principles set forth in this [Act].” 28 U. S. C. §1602 (emphasis added). Thus, any sort of immunity defense made by a foreign sovereign in an American court must stand on the Act’s text. Or it must fall. The text of the Act confers on foreign states two kinds of immunity. First and most significant, “a foreign state shall be immune from the jurisdiction of the courts of the United States . . . except as provided in sections 1605 to 1607.” §1604. That provision is of no help to Argentina here: A foreign state may waive jurisdictional immunity, §1605(a)(1), and in this case Argentina did so, see 695 F. 3d, at 203. Consequently, the Act makes Argentina “liable in the same manner and to the same extent as a private individual under like circumstances.” §1606. The Act’s second immunity-conferring provision states that “the property in the United States of a foreign state shall be immune from attachment[,] arrest[,] and execution except as provided in sections 1610 and 1611 of this chapter.” §1609. The exceptions to this immunity defense (we will call it “execution immunity”) are narrower. “The property in the United States of a foreign state” is subject to attachment, arrest, or execution if (1) it is “used for a commercial activity in the United States,” §1610(a), and (2) some other enumerated exception to immunity applies, such as the one allowing for waiver, see §1610(a)(1)–(7). The Act goes on to confer a more robust execution immu-nity on designated international-organization property, §1611(a), property of a foreign central bank, §1611(b)(1), and “property of a foreign state . . . [that] is, or is intended to be, used in connection with a military activity” and is either “of a military character” or “under the control of a military authority or defense agency,” §1611(b)(2). That is the last of the Act’s immunity-granting sections. There is no third provision forbidding or limiting discovery in aid of execution of a foreign-sovereign judgment debtor’s assets. Argentina concedes that no part of the Act “expressly address[es] [postjudgment] discovery.” Brief for Petitioner 22. Quite right. The Act speaks of discovery only once, in an subsection requiring courts to stay discovery requests directed to the United States that would interfere with criminal or national-security matters, §1605(g)(1). And that section explicitly suspends certain Federal Rules of Civil Procedure when such a stay is entered, see §1605(g)(4). Elsewhere, it is clear when the Act’s provisions specifically applicable to suits against sovereigns displace their general federal-rule counterparts. See, e.g., §1608(d). Far from containing the “plain statement” necessary to preclude application of federal discovery rules, Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, 539 (1987) , the Act says not a word on the subject.[3] Argentina would have us draw meaning from this silence. Its argument has several parts. First, it asserts that, before and after the Tate Letter, the State Department and American courts routinely accorded absolute execution immunity to foreign-state property. If a thing belonged to a foreign sovereign, then, no matter where it was found, it was immune from execution. And absolute immunity from execution necessarily entailed immunity from discovery in aid of execution. Second, by codifying execution immunity with only a small set of exceptions, Congress merely “partially lowered the previously unconditional barrier to post-judgment relief.” Brief for Petitioner 29. Because the Act gives “no indication that it was authorizing courts to inquire into state property beyond the court’s limited enforcement authority,” ibid., Argen-tina contends, discovery of assets that do not fall within an exception to execution immunity (plainly true of a foreign state’s extraterritorial assets) is forbidden. The argument founders at each step. To begin with, Argentina cites no case holding that, before the Act, a foreign state’s extraterritorial assets enjoyed absolute execution immunity in United States courts. No surprise there. Our courts generally lack authority in the first place to execute against property in other countries, so how could the question ever have arisen? See Wright & Miller §3013, at 156 (“[A] writ of execution . . . can be served anywhere within the state in which the district court is held”). More importantly, even if Argentina were right about the scope of the common-law execution-immunity rule, then it would be obvious that the terms of §1609 execution immunity are narrower, since the text of that provision immunizes only foreign-state property “in the United States.” So even if Argentina were correct that §1609 execution immunity implies coextensive discovery-in-aid-of-execution immunity, the latter would not shield from discovery a foreign sovereign’s extraterritorial assets. But what of foreign-state property that would enjoy execution immunity under the Act, such as Argentina’s diplomatic or military property? Argentina maintains that, if a judgment creditor could not ultimately execute a judgment against certain property, then it has no business pursuing discovery of information pertaining to that prop-erty. But the reason for these subpoenas is that NML does not yet know what property Argentina has and where it is, let alone whether it is executable under the relevant jurisdiction’s law. If, bizarrely, NML’s subpoenas had sought only “information that could not lead to executable assets in the United States or abroad,” then Argentina likely would be correct to say that the subpoenas were unenforceable—not because information about nonexecutable assets enjoys a penumbral “discovery immunity” under the Act, but because information that could not possibly lead to executable assets is simply not “relevant” to execution in the first place, Fed. Rule Civ. Proc. 26(b)(1); N. Y. Civ. Prac. Law Ann. §5223.[4] But of course that is not what the subpoenas seek. They ask for information about Argentina’s worldwide assets generally, so that NML can identify where Argentina may be holding property that is subject to execution. To be sure, that request is bound to turn up information about property that Argentina regards as immune. But NML may think the same property not immune. In which case, Argentina’s self-serving legal assertion will not automatically prevail; the District Court will have to settle the matter. * * * Today’s decision leaves open what Argentina thinks is a gap in the statute. Could the 1976 Congress really have meant not to protect foreign states from postjudgment discovery “clearinghouses”? The riddle is not ours to solve (if it can be solved at all). It is of course possible that, had Congress anticipated the rather unusual circumstances of this case (foreign sovereign waives immunity; foreign sovereign owes money under valid judgments; foreign sovereign does not pay and apparently has no executable assets in the United States), it would have added to the Act a sentence conferring categorical discovery-in-aid-of-execution immunity on a foreign state’s extraterritorial assets. Or, just as possible, it would have done no such thing. Either way, “[t]he question . . . is not what Congress ‘would have wanted’ but what Congress enacted in the FSIA.” Republic of Argentina v. Weltover, Inc., 504 U. S. 607, 618 (1992) .[5] Nonetheless, Argentina and the United States urge us to consider the worrisome international-relations consequences of siding with the lower court. Discovery orders as sweeping as this one, the Government warns, will cause “a substantial invasion of [foreign states’] sovereignty,” Brief for United States as Amicus Curiae 18, and will “[u]ndermin[e] international comity,” id., at 19. Worse, such orders might provoke “reciprocal adverse treatment of the United States in foreign courts,” id., at 20, and will “threaten harm to the United States’ foreign relations more generally,” id., at 21. These apprehensions are better directed to that branch of government with author-ity to amend the Act—which, as it happens, is the same branch that forced our retirement from the immunity-by-factor-balancing business nearly 40 years ago.[6] The judgment of the Court of Appeals is affirmed. It is so ordered. Justice Sotomayor took no part in the decision of this case.Notes 1 The District Court’s jurisdiction rested on Argentina’s broad waiver of sovereign immunity memorialized in its bond indenture agreement, which states: “To the extent that [Argentina] or any of its revenues, assets or properties shall be entitled . . . to any immunity from suit . . . from attachment prior to judgment . . . from execution of a judgment or from any other legal or judicial process or remedy, . . . [Argentina] has irrevocably agreed not to claim and has irrevocably waived such immunity to the fullest extent permitted by the laws of such jurisdiction (and consents generally for the purposes of the [FSIA] to the giving of any relief or the issue of any process in connection with any Related Proceeding or Related Judgment) . . . .” App. 106–107. 2 On one of the final pages of its reply brief, Argentina makes for the first time the assertion (which it does not develop, and for which it cites no authority) that the scope of Rule 69 discovery in aid of execution is limited to assets upon which a United States court can execute. Reply Brief 19. We will not revive a forfeited argument simply because the petitioner gestures toward it in its reply brief. 3 Argentina and the United States suggest that, under the terms of Rule 69 itself, the Act trumps the federal rules, since Rule 69(a)(1) states that “a federal statute governs to the extent it applies.” But, since the Act does not contain implicit discovery-immunity protections, it does not “apply” (in the relevant sense) at all. 4 The dissent apparently agrees that the Act has nothing to say about the scope of postjudgment discovery of a foreign sovereign’s extraterritorial assets. It also apparently agrees that the rules limit discovery to matters relevant to execution. Our agreement ends there. The dissent goes on to assert that, unless a judgment creditor up front that all of the information it seeks is relevant to execution under the laws of all foreign jurisdictions, discovery of information concerning extraterritorial assets is limited to that which the Act makes relevant to execution . , at 2 (opinion of , J.). We can find no basis in the Act or the rules for that position. 5 NML also argues that, even if Argentina had a claim to immunity from postjudgment discovery, it waived it in its bond indenture agreement, see n. 1, . The Second Circuit did not address this argument. Nor do we. 6 Although this appeal concerns only the meaning of the Act, we have no reason to doubt that, as NML concedes, “other sources of law” ordinarily will bear on the propriety of discovery requests of this nature and scope, such as “settled doctrines of privilege and the discretionary determination by the district court whether the discovery is warranted, which may appropriately consider comity interests and the burden that the discovery might cause to the foreign state.” Brief for Respondent 24–25 (quoting v. , –544, and n. 28 (1987)).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. certiorari to the united states court of appeals for the second circuit No. 12–842. Argued April 21, 2014—Decided June 16, 2014 After petitioner, Republic of Argentina, defaulted on its external debt, respondent, NML Capital, Ltd. (NML), one of Argentina’s bondholders, prevailed in 11 debt-collection actions that it brought against Argentina in the Southern District of New York. In aid of executing the judgments, NML sought discovery of Argentina’s property, serving subpoenas on two nonparty banks for records relating to Argentina’s global financial transactions. The District Court granted NML’s motions to compel compliance. The Second Circuit affirmed, rejecting Argentina’s argument that the District Court’s order transgressed the Foreign Sovereign Immunities Act of 1976 (FSIA or Act). Held: No provision in the FSIA immunizes a foreign-sovereign judgment debtor from postjudgment discovery of information concerning its extraterritorial assets. . (a) This Court assumes without deciding that, in the ordinary case, a district court would have the discretion under Federal Rule of Civil Procedure 69(a)(2) to permit discovery of third-party information bearing on a judgment debtor’s extraterritorial assets. . (b) The FSIA replaced an executive-driven, factor-intensive, loosely common-law-based immunity regime with “a comprehensive framework for resolving any claim of sovereign immunity.” Republic of Austria v. Altmann, 541 U.S. 677, 699. Henceforth, any sort of immunity defense made by a foreign sovereign in an American court must stand or fall on the Act’s text. The Act confers on foreign states two kinds of immunity. The first, jurisdictional immunity ( 28 U. S. C. §1604), was waived here. The second, execution immunity, generally shields “property in the United States of a foreign state” from attachment, arrest, and execution. §§1609, 1610. See also §1611(a), (b)(1), (b)(2). The Act has no third provision forbidding or limiting discovery in aid of execution of a foreign-sovereign judgment debtor’s assets. Far from containing the “plain statement” necessary to preclude application of federal discovery rules, Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 539, the Act says not a word about postjudgment discovery in aid of execution. Argentina’s arguments are unavailing. Even if Argentina were correct that §1609 execution immunity implies coextensive discovery-in-aid-of-execution immunity, the latter would not shield from discovery a foreign sovereign’s extraterritorial assets, since the text of §1609 immunizes only foreign-state property “in the United States.” The prospect that NML’s general request for information about Argentina’s worldwide assets may turn up information about property that Argentina regards as immune does not mean that NML cannot pursue discovery of it. . 695 F.3d 201, affirmed. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Breyer, Alito, and Kagan, JJ., joined. Ginsburg, J., filed a dissenting opinion. Sotomayor, J., took no part in the decision of the case.

Petitioner Republic of Argentina defaulted on its external debt in 2001. In 2010, it restructured most of that debt by offering creditors new securities (with less favorable terms) to swap out for the defaulted ones. Most bondholders went along, and respondent NML Capital, Ltd. (NML), among others, brought actions against Argentina in the Southern District of New York to collect on its debt, and prevailed in every one. It is owed around $2.5 billion, which Argentina has not paid. Since 2003, NML has pursued discovery of Argentina's property, and has served subpoenas on two nonparty banks, Bank of America (BOA) and Banco de la Nación Argentina (BNA), an Argentinian bank with a branch in New York City. For the most part, the subpoenas target the same kinds of information: documents relating to accounts maintained by or on behalf of Argentina, documents identifying the opening and closing dates of Argentina accounts, current balances, transaction histories, records of electronic fund transfers, debts owed by the bank to Argentina, transfers in and out of Argentina’s accounts, and information about transferors and transferees. The District Court denied the motion to quash and granted the motions to compel. The court concluded that extraterritorial asset discovery did not offend Argentina's sovereign immunity, and that it would serve as a clearinghouse for information in NML's efforts to find and attach Argentina's assets. But the court made clear that it expected the parties to negotiate further over specific production requests, which, the court said, must include a reasonable definition of the information sought. There was no point in obtaining information about something that might lead to attachment in Argentina because that would be useless information, since no Argentinian court would allow attachment. NML and BOA later negotiated additional changes to the BOA subpoena, and BNA neither engaged in negotiation nor complied with the subpoena. The court also refused to comply with Argentina, arguing that the discovery transgressed Argentina sovereign immunity because it involves attachment, attachment, and attachment. The Court of Appeals affirmed. Held: The Foreign Sovereign Immunities Act of 1976 (Act), 28 U. S. C. §§1330, 1602 et seq., limits the scope of discovery available to a judgment creditor in a federal postjudgment execution proceeding against a foreign sovereign. . (a) To understand the Act, one must know something about the regime it replaced. Foreign sovereign immunity is, and always has been, a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 486. Accordingly, this Court has been to defe[r] to the decisions of the political branches about whether and when to exercise judicial power over foreign states.. Accordingly, the Act was replaced by the so-called Tate Letter theory, which held that immunity only a public public interest shielded only a sovereign sovereign from public public acts. See Tate Letter, supra, at 487. And the Act abated the bedlam caused by executive-driven, factor-intensive, loosely common-law-based immunity regime with the Foreign Sovereign Immu-nities Act (FSIA), which abated that bedlam in 1976, replacing it with the more lenient common law. Here, the text of the Act confers on foreign states two kinds of immunity: (1) that a foreign state shall be immune from the jurisdiction of the courts of the United States except as provided in sections 1605 to 1607, and (2) that the property in the United State of a foreign state shall have immune from attachment, arrest, or execution, if (i) it is used for a commercial activity in United States or abroad. However, §1609 execution immunity implies coextensive discovery-in-aid-of-execution immunity, which would not shield from discovery a foreign-state property that would enjoy execution immunity under the Act. Argentina contends that, since the Act does not contain implicit discovery-immunity protections, it does not apply (in the relevant sense) at all to post-judgment discovery. Respondent argues that the Act trumps the federal rules, since Rule 69(a)(1) states that a federal statute governs to the extent it applies, but does not, at all, apply. Moreover, Argentina argues that, because the Act gives no indication that it was authorizing courts to inquire into state property beyond the court's limited enforcement authority, discovery of assets that do not fall within an exception to execution immunity is forbidden. Pp. 695 F. 3d 201, 203, and n. 2. On one of the final pages of its reply brief, Argentina makes for the first time the assertion (which it did not develop, and for

2013_12-929

https://www.oyez.org/cases/2013/12-929

. The question in this case concerns the procedure that is available for a defendant in a civil case who seeks to enforce a forum-selection clause. We reject petitioner’s argument that such a clause may be enforced by a motion to dismiss under 28 U. S. C. §1406(a) or Rule 12(b)(3) of the Federal Rules of Civil Procedure. Instead, a forum-selection clause may be enforced by a motion to transfer under §1404(a) (2006 ed., Supp. V), which provides that “[f ]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” When a defendant files such a motion, we conclude, a district court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer. In the present case, both the District Court and the Court of Appeals misunderstood the standards to be applied in adjudicating a §1404(a) motion in a case involving a forum-selection clause, and we therefore reverse the decision below. I Petitioner Atlantic Marine Construction Co., a Virginia corporation with its principal place of business in Virginia, entered into a contract with the United States Army Corps of Engineers to construct a child-development center at Fort Hood in the Western District of Texas. Atlantic Marine then entered into a subcontract with respondent J-Crew Management, Inc., a Texas corporation, for work on the project. This subcontract included a forum-selection clause, which stated that all disputes between the parties “ ‘shall be litigated in the Circuit Court for the City of Norfolk, Virginia, or the United States District Court for the Eastern District of Virginia, Norfolk Division.’ ” In re Atlantic Marine Constr. Co., 701 F. 3d 736, 737–738 (CA5 2012). When a dispute about payment under the subcontract arose, however, J-Crew sued Atlantic Marine in the Western District of Texas, invoking that court’s diversity ju- risdiction. Atlantic Marine moved to dismiss the suit, arguing that the forum-selection clause rendered venue in the Western District of Texas “wrong” under §1406(a) and “improper” under Federal Rule of Civil Procedure 12(b)(3). In the alternative, Atlantic Marine moved to transfer the case to the Eastern District of Virginia under §1404(a). J-Crew opposed these motions. The District Court denied both motions. It first concluded that §1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum. The District Court then held that Atlantic Marine bore the burden of establishing that a transfer would be appropriate under §1404(a) and that the court would “consider a nonexhaustive and nonexclusive list of public and private interest factors,” of which the “forum-selection clause [was] only one such factor.” United States ex rel. J-Crew Management, Inc. v. Atlantic Marine Constr. Co., 2012 WL 8499879, *5 (WD Tex., Apr. 6, 2012). Giving particular weight to its findings that “compulsory process will not be available for the majority of J-Crew’s witnesses” and that there would be “significant expense for those willing witnesses,” the District Court held that Atlantic Marine had failed to carry its burden of showing that transfer “would be in the interest of justice or increase the convenience to the parties and their witnesses.” Id., at *7–*8; see also 701 F. 3d, at 743. Atlantic Marine petitioned the Court of Appeals for a writ of mandamus directing the District Court to dismiss the case under §1406(a) or to transfer the case to the East- ern District of Virginia under §1404(a). The Court of Appeals denied Atlantic Marine’s petition because Atlantic Marine had not established a “ ‘clear and indisputable’ ” right to relief. Id., at 738; see Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 381 (2004) (mandamus “petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable” (internal quotation marks omitted; brackets in original)). Relying on Stewart Organization, Inc. v. Ricoh Corp., 487 U. S. 22 (1988) , the Court of Appeals agreed with the District Court that §1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum when venue is otherwise proper in the district where the case was brought. See 701 F. 3d, at 739–741. [ 1 ] The court stated, however, that if a forum-selection clause points to a nonfederal forum, dismissal under Rule 12(b)(3) would be the correct mechanism to enforce the clause because §1404(a) by its terms does not permit transfer to any tribunal other than another federal court. Id., at 740. The Court of Appeals then concluded that the District Court had not clearly abused its discretion in refusing to transfer the case after conducting the balance-of-interests analysis required by §1404(a). Id., at 741–743; see Cheney, supra, at 380 (permitting mandamus relief to correct “a clear abuse of discretion” (internal quotation marks omitted)). That was so even though there was no dispute that the forum-selection clause was valid. See 701 F. 3d, at 742; id., at 744 (concurring opinion). We granted certiorari. 569 U. S. ___ (2013). II Atlantic Marine contends that a party may enforce a forum-selection clause by seeking dismissal of the suit under §1406(a) and Rule 12(b)(3). We disagree. Section 1406(a) and Rule 12(b)(3) allow dismissal only when venue is “wrong” or “improper.” Whether venue is “wrong” or “improper” depends exclusively on whether the court in which the case was brought satisfies the requirements of federal venue laws, and those provisions say nothing about a forum-selection clause. A Section 1406(a) provides that “[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” Rule 12(b)(3) states that a party may move to dismiss a case for “improper venue.” These provisions therefore authorize dismissal only when venue is “wrong” or “improper” in the forum in which it was brought. This question—whether venue is “wrong” or “improper”—is generally governed by 28 U. S. C. §1391 (2006 ed., Supp. V). [ 2 ] That provision states that “[e]xcept as otherwise provided by law . . . this section shall govern the venue of all civil actions brought in district courts of the United States.” §1391(a)(1) (emphasis added). It further provides that “[a] civil action may be brought in—(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.” §1391(b). [ 3 ] When venue is challenged, the court must determine whether the case falls within one of the three categories set out in §1391(b). If it does, venue is proper; if it does not, venue is improper, and the case must be dismissed or transferred under §1406(a). Whether the parties entered into a contract containing a forum-selection clause has no bearing on whether a case falls into one of the categories of cases listed in §1391(b). As a result, a case filed in a district that falls within §1391 may not be dismissed under §1406(a) or Rule 12(b)(3). Petitioner’s contrary view improperly conflates the special statutory term “venue” and the word “forum.” It is certainly true that, in some contexts, the word “venue” is used synonymously with the term “forum,” but §1391 makes clear that venue in “all civil actions” must be determined in accordance with the criteria outlined in that section. That language cannot reasonably be read to allow judicial consideration of other, extrastatutory limitations on the forum in which a case may be brought. The structure of the federal venue provisions confirms that they alone define whether venue exists in a given forum. In particular, the venue statutes reflect Congress’ intent that venue should always lie in some federal court whenever federal courts have personal jurisdiction over the defendant. The first two paragraphs of §1391(b) define the preferred judicial districts for venue in a typical case, but the third paragraph provides a fallback option: If no other venue is proper, then venue will lie in “any judicial district in which any defendant is subject to the court’s personal jurisdiction” (emphasis added). The statute thereby ensures that so long as a federal court has personal jurisdiction over the defendant, venue will always lie somewhere. As we have previously noted, “Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other.” Smith v. United States, 507 U. S. 197, 203 (1993) (internal quotation marks omitted). Yet petitioner’s approach would mean that in some number of cases—those in which the forum-selection clause points to a state or foreign court—venue would not lie in any federal district. That would not comport with the statute’s design, which contemplates that venue will always exist in some federal court. The conclusion that venue is proper so long as the requirements of §1391(b) are met, irrespective of any forum-selection clause, also follows from our prior decisions construing the federal venue statutes. In Van Dusen v. Barrack, 376 U. S. 612 (1964) , we considered the meaning of §1404(a), which authorizes a district court to “transfer any civil action to any other district or division where it might have been brought.” The question in Van Dusen was whether §1404(a) allows transfer to a district in which venue is proper under §1391 but in which the case could not have been pursued in light of substantive state-law limitations on the suit. See id., at 614–615. In holding that transfer is permissible in that context, we construed the phrase “where it might have been brought” to refer to “the federal laws delimiting the districts in which such an action ‘may be brought,’ ” id., at 624, noting that “the phrase ‘may be brought’ recurs at least 10 times” in §§1391–1406, id., at 622. We perceived “no valid reason for reading the words ‘where it might have been brought’ to narrow the range of permissible federal forums beyond those permitted by federal venue statutes.” Id., at 623. As we noted in Van Dusen, §1406(a) “shares the same statutory context” as §1404(a) and “contain[s] a similar phrase.” Id., at 621, n. 11. It instructs a court to transfer a case from the “wrong” district to a district “in which it could have been brought.” The most reasonable interpretation of that provision is that a district cannot be “wrong” if it is one in which the case could have been brought under §1391. Under the construction of the venue laws we adopted in Van Dusen, a “wrong” district is therefore a district other than “those districts in which Congress has provided by its venue statutes that the action ‘may be brought.’ ” Id., at 618 (emphasis added). If the federal venue statutes establish that suit may be brought in a particular district, a contractual bar cannot render venue in that district “wrong.” Our holding also finds support in Stewart, 487 U. S. 22 . As here, the parties in Stewart had included a forum-selection clause in the relevant contract, but the plaintiff filed suit in a different federal district. The defendant had initially moved to transfer the case or, in the alternative, to dismiss for improper venue under §1406(a), but by the time the case reached this Court, the defendant had abandoned its §1406(a) argument and sought only transfer under §1404(a). We rejected the plaintiff’s argument that state law governs a motion to transfer venue pursuant to a forum-selection clause, concluding instead that “federal law, specifically 28 U. S. C. §1404(a), governs the District Court’s decision whether to give effect to the parties’ forum-selection clause.” Id., at 32. We went on to explain that a “motion to transfer under §1404(a) . . . calls on the district court to weigh in the balance a number of case-specific factors” and that the “presence of a forum-selection clause . . . will be a significant factor that figures centrally in the district court’s calculus.” Id., at 29. The question whether venue in the original court was “wrong” under §1406(a) was not before the Court, but we wrote in a footnote that “[t]he parties do not dispute that the District Court properly denied the motion to dismiss the case for improper venue under 28 U. S. C. §1406(a) because respondent apparently does business in the Northern District of Alabama. See 28 U. S. C. §1391(c) (venue proper in judicial district in which corporation is doing business).” Id., at 28, n. 8. In other words, because §1391 made venue proper, venue could not be “wrong” for purposes of §1406(a). Though dictum, the Court’s observation supports the holding we reach today. A contrary view would all but drain Stewart of any significance. If a forum-selection clause rendered venue in all other federal courts “wrong,” a defendant could always obtain automatic dismissal or transfer under §1406(a) and would not have any reason to resort to §1404(a). Stewart’s holding would be limited to the presumably rare case in which the defendant inexplicably fails to file a motion under §1406(a) or Rule 12(b)(3). B Although a forum-selection clause does not render venue in a court “wrong” or “improper” within the meaning of §1406(a) or Rule 12(b)(3), the clause may be enforced through a motion to transfer under §1404(a). That provision states that “[f ]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” Unlike §1406(a), §1404(a) does not condition transfer on the ini- tial forum’s being “wrong.” And it permits transfer to any district where venue is also proper (i.e., “where [the case] might have been brought”) or to any other district to which the parties have agreed by contract or stipulation. Section 1404(a) therefore provides a mechanism for enforcement of forum-selection clauses that point to a particular federal district. And for the reasons we address in Part III, infra, a proper application of §1404(a) requires that a forum-selection clause be “given controlling weight in all but the most exceptional cases.” Stewart, supra, at 33 (Kennedy, J., concurring). Atlantic Marine argues that §1404(a) is not a suitable mechanism to enforce forum-selection clauses because that provision cannot provide for transfer when a forum-selection clause specifies a state or foreign tribunal, see Brief for Petitioner 18–19, and we agree with Atlantic Marine that the Court of Appeals failed to provide a sound answer to this problem. The Court of Appeals opined that a forum-selection clause pointing to a nonfederal forum should be enforced through Rule 12(b)(3), which permits a party to move for dismissal of a case based on “improper venue.” 701 F. 3d, at 740. As Atlantic Marine persua- sively argues, however, that conclusion cannot be reconciled with our construction of the term “improper venue” in §1406 to refer only to a forum that does not satisfy federal venue laws. If venue is proper under federal venue rules, it does not matter for the purpose of Rule 12(b)(3) whether the forum-selection clause points to a federal or a nonfederal forum. Instead, the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens. Section 1404(a) is merely a codification of the doctrine of forum non conveniens for the subset of cases in which the transferee forum is within the federal court system; in such cases, Congress has replaced the traditional remedy of outright dismissal with transfer. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U. S. 422, 430 (2007) (“For the federal court system, Congress has codified the doctrine . . . ”); see also notes following §1404 (Historical and Revision Notes) (Section 1404(a) “was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper”). For the remaining set of cases calling for a nonfederal forum, §1404(a) has no application, but the residual doctrine of forum non conveniens “has continuing application in federal courts.” Sinochem, 549 U. S., at 430 (internal quotation marks and brackets omitted); see also ibid. (noting that federal courts invoke forum non conveniens “in cases where the alternative forum is abroad, and perhaps in rare instances where a state or territorial court serves litigational convenience best” (internal quotation marks and citation omitted)). And because both §1404(a) and the forum non conveniens doctrine from which it derives entail the same balancing-of-interests standard, courts should evaluate a forum-selection clause pointing to a nonfederal forum in the same way that they evaluate a forum-selection clause pointing to a federal forum. See Stewart, 487 U. S., at 37 (Scalia, J., dissenting) (Section 1404(a) “did not change ‘the relevant factors’ which federal courts used to consider under the doctrine of forum non conveniens” (quoting Norwood v. Kirkpatrick, 349 U. S. 29, 32 (1955) )). C An amicus before the Court argues that a defendant in a breach-of-contract action should be able to obtain dismissal under Rule 12(b)(6) if the plaintiff files suit in a district other than the one specified in a valid forum-selection clause. See Brief for Stephen E. Sachs as Amicus Curiae. Petitioner, however, did not file a motion under Rule 12(b)(6), and the parties did not brief the Rule’s application to this case at any stage of this litigation. We therefore will not consider it. Even if a defendant could use Rule 12(b)(6) to enforce a forum-selection clause, that would not change our conclusions that §1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forum-selection clause and that §1404(a) and the forum non conveniens doctrine provide appropriate enforcement mechanisms. [ 4 ] III Although the Court of Appeals correctly identified §1404(a) as the appropriate provision to enforce the forum-selection clause in this case, the Court of Appeals erred in failing to make the adjustments required in a §1404(a) analysis when the transfer motion is premised on a forum-selection clause. When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. [ 5 ] Only under extraordinary circumstances unrelated to the convenience of the parties should a §1404(a) motion be denied. And no such exceptional factors appear to be present in this case. A In the typical case not involving a forum-selection clause, a district court considering a §1404(a) motion (or a forum non conveniens motion) must evaluate both the convenience of the parties and various public-interest considerations. [ 6 ] Ordinarily, the district court would weigh the relevant factors and decide whether, on balance, a transfer would serve “the convenience of parties and witnesses” and otherwise promote “the interest of justice.” §1404(a). The calculus changes, however, when the parties’ contract contains a valid forum-selection clause, which “represents the parties’ agreement as to the most proper forum.” Stewart, 487 U. S., at 31. The “enforcement of valid forum-selection clauses, bargained for by the parties, protects their legitimate expectations and furthers vital interests of the justice system.” Id., at 33 (Kennedy, J., concurring). For that reason, and because the overarching consideration under §1404(a) is whether a transfer would promote “the interest of justice,” “a valid forum-selection clause [should be] given controlling weight in all but the most exceptional cases.” Id., at 33 (same). The presence of a valid forum-selection clause requires district courts to adjust their usual §1404(a) analysis in three ways. First, the plaintiff’s choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted. Because plaintiffs are ordinarily allowed to select whatever forum they consider most advantageous (consistent with jurisdictional and venue limitations), we have termed their selection the “plaintiff’s venue privilege.” Van Dusen, 376 U. S., at 635. [ 7 ] But when a plaintiff agrees by contract to bring suit only in a specified forum—presumably in exchange for other binding promises by the defendant—the plaintiff has effectively exercised its “venue privilege” before a dispute arises. Only that initial choice deserves deference, and the plaintiff must bear the burden of showing why the court should not transfer the case to the forum to which the parties agreed. Second, a court evaluating a defendant’s §1404(a) motion to transfer based on a forum-selection clause should not consider arguments about the parties’ private interests. When parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation. A court accordingly must deem the private-interest factors to weigh entirely in favor of the preselected forum. As we have explained in a different but “ ‘instructive’ ” context, Stewart, supra, at 28, “[w]hatever ‘inconvenience’ [the parties] would suffer by being forced to litigate in the contractual forum as [they] agreed to do was clearly foreseeable at the time of contracting.” The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 –18 (1972); see also Stewart, supra, at 33 (Kennedy, J., concurring) (stating that Bremen’s “reasoning applies with much force to federal courts sitting in diversity”). As a consequence, a district court may consider arguments about public-interest factors only. See n. 6, supra. Because those factors will rarely defeat a transfer motion, the practical result is that forum-selection clauses should control except in unusual cases. Although it is “conceiv- able in a particular case” that the district court “would refuse to transfer a case notwithstanding the counterweight of a forum-selection clause,” Stewart, supra, at 30–31, such cases will not be common. Third, when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a §1404(a) transfer of venue will not carry with it the original venue’s choice-of-law rules—a factor that in some circumstances may affect public-interest considerations. See Piper Aircraft Co. v. Reyno, 454 U. S. 235 , n. 6 (1981) (listing a court’s familiarity with the “law that must govern the action” as a potential factor). A federal court sitting in diversity ordinarily must follow the choice-of-law rules of the State in which it sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487 –496 (1941). However, we previously identified an exception to that prin- ciple for §1404(a) transfers, requiring that the state law applicable in the original court also apply in the trans- feree court. See Van Dusen, 376 U. S., at 639. We deemed that exception necessary to prevent “defendants, properly subjected to suit in the transferor State,” from “invok[ing] §1404(a) to gain the benefits of the laws of another jurisdiction . . . .” Id., at 638; see Ferens v. John Deere Co., 494 U. S. 516, 522 (1990) (extending the Van Dusen rule to §1404(a) motions by plaintiffs). The policies motivating our exception to the Klaxon rule for §1404(a) transfers, however, do not support an extension to cases where a defendant’s motion is premised on enforcement of a valid forum-selection clause. See Ferens, supra, at 523. To the contrary, those considerations lead us to reject the rule that the law of the court in which the plaintiff inappropriately filed suit should follow the case to the forum contractually selected by the parties. In Van Dusen, we were concerned that, through a §1404(a) transfer, a defendant could “defeat the state-law advantages that might accrue from the exercise of [the plaintiff’s] venue privilege.” 376 U. S., at 635. But as discussed above, a plaintiff who files suit in violation of a forum-selection clause enjoys no such “privilege” with respect to its choice of forum, and therefore it is entitled to no concomitant “state-law advantages.” Not only would it be inequitable to allow the plaintiff to fasten its choice of substantive law to the venue transfer, but it would also encourage gamesmanship. Because “§1404(a) should not create or multiply opportunities for forum shopping,” Ferens, supra, at 523, we will not apply the Van Dusen rule when a transfer stems from enforcement of a forum-selection clause: The court in the contractually selected venue should not apply the law of the transferor venue to which the parties waived their right. [ 8 ] When parties have contracted in advance to litigate disputes in a particular forum, courts should not unnecessarily disrupt the parties’ settled expectations. A forum-selection clause, after all, may have figured centrally in the parties’ negotiations and may have affected how they set monetary and other contractual terms; it may, in fact, have been a critical factor in their agreement to do business together in the first place. In all but the most un-usual cases, therefore, “the interest of justice” is served by holding parties to their bargain. B The District Court’s application of §1404(a) in this case did not comport with these principles. The District Court improperly placed the burden on Atlantic Marine to prove that transfer to the parties’ contractually preselected forum was appropriate. As the party acting in violation of the forum-selection clause, J-Crew must bear the burden of showing that public-interest factors overwhelmingly disfavor a transfer. The District Court also erred in giving weight to arguments about the parties’ private interests, given that all private interests, as expressed in the forum-selection clause, weigh in favor of the transfer. The District Court stated that the private-interest factors “militat[e] against a transfer to Virginia” because “compulsory process will not be available for the majority of J-Crew’s witnesses” and there will be “significant expense for those willing witnesses.” 2012 WL 8499879, *6–*7; see 701 F. 3d, at 743 (noting District Court’s “concer[n] with J-Crew’s ability to secure witnesses for trial”). But when J-Crew entered into a contract to litigate all disputes in Virginia, it knew that a distant forum might hinder its ability to call certain witnesses and might impose other burdens on its litigation efforts. It nevertheless promised to resolve its disputes in Virginia, and the District Court should not have given any weight to J-Crew’s current claims of inconvenience. The District Court also held that the public-interest factors weighed in favor of keeping the case in Texas because Texas contract law is more familiar to federal judges in Texas than to their federal colleagues in Vir- ginia. That ruling, however, rested in part on the District Court’s belief that the federal court sitting in Virginia would have been required to apply Texas’ choice-of-law rules, which in this case pointed to Texas contract law. See 2012 WL 8499879, *8 (citing Van Dusen, supra, at 639). But for the reasons we have explained, the trans- feree court would apply Virginia choice-of-law rules. It is true that even these Virginia rules may point to the contract law of Texas, as the State in which the contract was formed. But at minimum, the fact that the Virginia court will not be required to apply Texas choice-of-law rules reduces whatever weight the District Court might have given to the public-interest factor that looks to the familiarity of the transferee court with the applicable law. And, in any event, federal judges routinely apply the law of a State other than the State in which they sit. We are not aware of any exceptionally arcane features of Texas contract law that are likely to defy comprehension by a fed- eral judge sitting in Virginia. * * * We reverse the judgment of the Court of Appeals for the Fifth Circuit. Although no public-interest factors that might support the denial of Atlantic Marine’s motion to transfer are apparent on the record before us, we remand the case for the courts below to decide that question. It is so ordered. Notes 1 Venue was otherwise proper in the Western District of Texas because the subcontract at issue in the suit was entered into and was to be performed in that district. See United States ex rel. J-Crew Management, Inc. v. Atlantic Marine Constr. Co., 2012 WL 8499879, *5 (WD Tex., Apr. 6, 2012) (citing ). 2 Section 1391 governs “venue generally,” that is, in cases where a more specific venue provision does not apply. Cf., e.g., §1400 (identifying proper venue for copyright and patent suits). 3 Other provisions of §1391 define the requirements for proper venue in particular circumstances. 4 We observe, moreover, that a motion under Rule 12(b)(6), unlike a motion under §1404(a) or the forum non conveniens doctrine, may lead to a jury trial on venue if issues of material fact relating to the validity of the forum-selection clause arise. Even if Professor Sachs is ultimately correct, therefore, defendants would have sensible reasons to invoke §1404(a) or the forum non conveniens doctrine in addition to Rule 12(b)(6). 5 Our analysis presupposes a contractually valid forum-selection clause. 6 Factors relating to the parties’ private interests include “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Piper Aircraft Co. v. Reyno, (internal quotation marks omitted). Public-interest factors may include “the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law.” Ibid. (internal quotation marks omitted). The Court must also give some weight to the plaintiffs’ choice of forum. See Norwood v. Kirkpatrick, . 7 We note that this “privilege” exists within the confines of statutory limitations, and “[i]n most instances, the purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial.” Leroy v. Great Western United Corp., –184 (1979). 8 For the reasons detailed above, see Part II–B, supra, the same standards should apply to motions to dismiss for forum non conveniens in cases involving valid forum-selection clauses pointing to state or for-eign forums. We have noted in contexts unrelated to forum-selection clauses that a defendant “invoking forum non conveniens ordinarily bears a heavy burden in opposing the plaintiff’s chosen forum.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Co., . That is because of the “hars[h] result” of that doctrine: Unlike a §1404(a) motion, a successful motion under forum non conveniens requires dismissal of the case. Norwood, 349 U. S., at 32. That inconveniences plaintiffs in several respects and even “makes it possible for [plaintiffs] to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate.” Id., at 31 (internal quotation marks omitted). Such caution is not warranted, however, when the plaintiff has violated a contractual obligation by filing suitin a forum other than the one specified in a valid forum-selection clause. In such a case, dismissal would work no injustice on the plaintiff.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus ATLANTIC MARINE CONSTRUCTION CO., INC. v. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS et al. certiorari to the united states court of appeals for the fifth circuit No. 12–929. Argued October 9, 2013—Decided December 3, 2013 Petitioner Atlantic Marine Construction Co., a Virginia corporation, entered into a subcontract with respondent J-Crew Management, Inc., a Texas corporation, for work on a construction project. The subcontract included a forum-selection clause, which stated that all disputes between the parties would be litigated in Virginia. When a dispute arose, however, J-Crew filed suit in the Western District of Texas. Atlantic Marine moved to dismiss, arguing that the forum-selection clause rendered venue “wrong” under 28 U. S. C. §1406(a) and “improper” under Federal Rule of Civil Procedure 12(b)(3). In the alternative, Atlantic Marine moved to transfer the case to the Eastern District of Virginia under 28 U. S. C. §1404(a). The District Court denied both motions. It concluded that §1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum; that Atlantic Marine bore the burden of establishing that a transfer would be appropriate under §1404(a); and that the court would consider both public- and private-interest factors, only one of which was the forum-selection clause. After weighing those factors, the court held that Atlantic Marine had not carried its burden. The Fifth Circuit denied Atlantic Marine’s petition for a writ of mandamus directing the District Court to dismiss the case under §1406(a) or to transfer it to the Eastern District of Virginia under §1404(a). The court agreed with the District Court that §1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum; that dismissal under Rule 12(b)(3) would be the correct mechanism for enforcing a forum-selection clause that pointed to a nonfederal forum; and that the District Court had not abused its discretion in refusing to transfer the case after conducting the balance-of-interests analysis required by §1404(a). Held: 1. A forum-selection clause may be enforced by a motion to transfer under §1404(a), which provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” . (a) Section 1406(a) and Rule 12(b)(3) allow dismissal only when venue is “wrong” or “improper.” Whether venue is “wrong” or “improper” depends exclusively on whether the court in which the case was brought satisfies the requirements of federal venue laws. Title 28 U. S. C. §1391, which governs venue generally, states that “[e]xcept as otherwise provided by law . . . this section shall govern the venue of all civil actions brought in” federal district courts. §1391(a)(1). It then defines districts in which venue is proper. See §1391(b). If a case falls within one of §1391(b)’s districts, venue is proper; if it does not, venue is improper, and the case must be dismissed or transferred under §1406(a). Whether the parties’ contract contains a forum-selection clause has no bearing on whether a case falls into one of the specified districts. This conclusion is confirmed by the structure of the federal venue provisions, which reflects Congress’ intent that venue should always lie in some federal court whenever federal courts have personal ju- risdiction over the defendant. See §1391(b)(3). The conclusion also follows from this Court’s decisions construing the federal venue statutes. See Van Dusen v. Barrack, 376 U.S. 612; Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22. . (b) Although a forum-selection clause does not render venue in a court “wrong” or “improper” under §1406(a) or Rule 12(b)(3), the clause may be enforced through a motion to transfer under §1404(a), which permits transfer to any other district where venue is proper or to any district to which the parties have agreed by contract or stipulation. Section 1404(a), however, governs transfer only within the federal court system. When a forum-selection clause points to a state or foreign forum, the clause may be enforced through the doctrine of forum non conveniens. Section 1404(a) is a codification of that doctrine for the subset of cases in which the transferee forum is another federal court. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422. For all other cases, parties may still invoke the residual forum non conveniens doctrine. See id., at 430. . (c) The Court declines to consider whether a defendant in a breach-of-contract action could obtain dismissal under Rule 12(b)(6) if the plaintiff files suit in a district other than the one specified in a forum-selection clause. Petitioner did not file a motion to dismiss un- der Rule 12(b)(6), and the parties did not brief the Rule’s application. . 2. When a defendant files a §1404(a) motion, a district court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer. No such exceptional factors appear to be present in this case. . (a) Normally, a district court considering a §1404(a) motion must evaluate both the private interests of the parties and public-interest considerations. But when the parties’ contract contains a valid forum-selection clause, that clause “represents [their] agreement as to the most proper forum,” Stewart, 487 U. S., at 31, and should be “given controlling weight in all but the most exceptional cases,” id., at 33 (Kennedy, J., concurring). The presence of a valid forum-selection clause requires district courts to adjust their usual §1404(a) analysis in three ways. First, the plaintiff’s choice of forum merits no weight, and the plaintiff, as the party defying the forum-selection clause, has the burden of establishing that transfer to the forum for which the parties bargained is unwarranted. Second, the court should not consider the parties’ private interests aside from those embodied in the forum-selection clause; it may consider only public interests. Because public-interest factors will rarely defeat a transfer motion, the practical result is that forum-selection clauses should control except in unusual cases. Third, when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a §1404(a) transfer of venue will not carry with it the original venue’s choice-of-law rules. See Van Dusen, supra, at 639. . (b) Here, the District Court’s application of §1404(a) did not comport with these principles. The court improperly placed the burden on Atlantic Marine to prove that transfer to the parties’ contractually preselected forum was appropriate instead of requiring J-Crew, the party acting in violation of the forum-selection clause, to show that public-interest factors overwhelmingly disfavored a transfer. It also erred in giving weight to the parties’ private interests outside those expressed in the forum-selection clause. And its holding that public interests favored keeping the case in Texas because Texas contract law is more familiar to federal judges in Texas than to those in Virginia rested in part on the District Court’s mistaken belief that the Virginia federal court would have been required to apply Texas’ choice-of-law rules instead of Virginia’s. . 701 F.3d 736, reversed and remanded. Alito, J., delivered the opinion for a unanimous Court.

Petitioner Atlantic Marine Construction Co., a Virginia corporation with its principal place of business in Virginia, entered into a subcontract with respondent J-Crew Management, Inc., a Texas corporation, for work on a child-development center in the Western District of Texas. The subcontract included a forum-selection clause that stated that all disputes between the parties should be litigated in either the Circuit Court or the District Court in the Eastern District of Virginia. When a dispute about payment under the subcontract arose, J- Crew sued Atlantic Marine in Texas, invoking that court's diversity ju- risdiction. The District Court denied both petitioners' motions to dismiss the suit on the ground that venue was wrong under 28 U.S. C. §1406(a) (which provides that "[e]xcept as otherwise provided by law... this section shall govern the venue of all civil actions brought in district courts of the United States." Held: When a defendant files a motion to dismiss under §1404(a), a district court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer. Cf. United States ex rel. Atlantic Marine Constr. Co., supra, at 738. . 701 F. 3d 736, reversed. THE CHIEF JUSTICE, joined by the Court of Appeals, concluded that: 1. The standards to be applied in adjudicating a §1403 (a) motion in this case misunderstood the standards of the federal venue laws. The most reasonable interpretation of that provision is that a district cannot be "wrong" if it is one in which the case could have been brought under §1391(b)(3). Under that construction, a district is therefore a district other than those districts in which Congress has provided by its venue statutes that the action may be brought. P.. 2. When the parties have agreed to a valid forum selection clause, a federal court sitting in diversity ordinarily must follow the state law applicable in the original court also apply in the trans- feree court. However, under the policies motivating this Court's exception to the rule that the law of the court in which a plaintiff inappropriately filed suit should follow the case to the forum contractually selected by the parties, the appropriate way to enforce a forumselection clause pointing to a state or a nonfederal forum is through the doctrine of forum non conveniens. That doctrine is merely a codification of the doctrine, codified in the federal court doctrine, for the subset of cases where the transferee forum is within the federal system. In such cases, Congress has replaced the traditional remedy of outright dismissal with transfer.. 3. Venue was otherwise proper in Texas because the subcontract at issue in the suit was entered into and was to be performed in that district. Under the parties in Stewart, the parties had included a forum-selected clause in the relevant contract, but the plaintiff filed suit in a different federal district. As a result, a case filed in a district that falls within §1491 may not be dismissed under either Rule 12(b) of the Federal Rules of Civil Procedure or Rule 13(a). The court must weigh the relevant factors and decide whether, on balance, a transfer would serve the parties' convenience or increase the convenience to the parties and their witnesses. Section 1391 governs venue generally in cases where a more specific venue provision does not apply. Moreover, § 1391 defines the requirements for proper venue in particular circumstances. Thus, a plaintiff who files suit in violation of a forum clause enjoys no such privilege with respect to its choice of forum, and therefore it is entitled to no concomitant state-law advantages. Nor is there any exceptionally arcane features of Texas contract law that are likely to defy comprehension by a fed- eral judge sitting in Virginia. Petitioner, however, did not file a motion under the Rule, and the parties did not brief the Rule here at any stage of this litigation. Accordingly, the Court will not consider it. Even if a defendant could use Rule 12 (b)(6), that would not change the conclusions that §1405(a)'s and Rule12(b)'s are not proper mechanisms to enforce a forum selection clause, and that §§1404 and 1204(3) provide appropriate enforcement mechanisms. Although a defendant in a breach-of-contract action should be able to obtain dismissal of a suit if the plaintiff files suit elsewhere than the one specified in a forum provision, that would be limited to the presumably rare case where the defendant inexplicably fails to file suit in another district. See, e.g., Vir- ginia. And an amicus before the Court would not consider a motion that a defendant may obtain dismissal under Rule 12.b(6) if a plaintiff files a suit in another district, since a defendant would have to bear the burden of showing that public

2013_12-138

https://www.oyez.org/cases/2013/12-138

. Article 8 of an investment treaty between the United Kingdom and Argentina contains a dispute-resolution pro-vision, applicable to disputes between one of those na-tions and an investor from the other. See Agreementfor the Promotion and Protection of Investments, Art. 8(2), Dec. 11, 1990, 1765 U. N. T. S. 38 (hereinafter Treaty). The provision authorizes either party to submit a dispute “to the decision of the competent tribunal of the Contracting Party in whose territory the investment was made,” i.e., a local court. Art. 8(1). And it provides for arbitration “(i) where, after a period of eighteen months has elapsed from the moment when the dispute was submitted to the competent tribunal . . . , the said tribunal has not given its final decision; [or] “(ii) where the final decision of the aforementioned tribunal has been made but the Parties are still in dispute.” Art. 8(2)(a). The Treaty also entitles the parties to agree to proceed directly to arbitration. Art. 8(2)(b). This case concerns the Treaty’s arbitration clause, and specifically the local court litigation requirement set forth in Article 8(2)(a). The question before us is whether a court of the United States, in reviewing an arbitration award made under the Treaty, should interpret and apply the local litigation requirement de novo, or with the deference that courts ordinarily owe arbitration decisions. That is to say, who—court or arbitrator—bears primary responsibility for interpreting and applying the local litigation requirement to an underlying controversy? In our view, the matter is for the arbitrators, and courts must review their determinations with deference. I A In the early 1990’s, the petitioner, BG Group plc, a British firm, belonged to a consortium that bought a majority interest in an Argentine entity called MetroGAS. MetroGAS was a gas distribution company created by Argentine law in 1992, as a result of the government’s privatization of its state-owned gas utility. Argentina distributed the utility’s assets to new, private companies, one of which was MetroGAS. It awarded MetroGAS a 35-year exclusive license to distribute natural gas in Buenos Aires, and it submitted a controlling interest in the company to international public tender. BG Group’s consor-tium was the successful bidder. At about the same time, Argentina enacted statutes providing that its regulators would calculate gas “tariffs” in U. S. dollars, and that those tariffs would be set at levels sufficient to assure gas distribution firms, such as MetroGAS, a reasonable return. In 2001 and 2002, Argentina, faced with an economic crisis, enacted new laws. Those laws changed the basis for calculating gas tariffs from dollars to pesos, at a rate of one peso per dollar. The exchange rate at the time was roughly three pesos to the dollar. The result was that MetroGAS’ profits were quickly transformed into losses. BG Group believed that these changes (and several others) violated the Treaty; Argentina believed the contrary. B In 2003, BG Group, invoking Article 8 of the Treaty, sought arbitration. The parties appointed arbitrators; they agreed to site the arbitration in Washington, D. C.; and between 2004 and 2006, the arbitrators decided motions, received evidence, and conducted hearings. BG Group essentially claimed that Argentina’s new laws and regulatory practices violated provisions in the Treaty forbidding the “expropriation” of investments and requiring that each nation give “fair and equitable treatment” to investors from the other. Argentina denied these claims, while also arguing that the arbitration tribunal lacked “jurisdiction” to hear the dispute. App. to Pet. for Cert. 143a–144a, 214a–218a, 224a–232a. According to Argen-tina, the arbitrators lacked jurisdiction because: (1) BG Group was not a Treaty-protected “investor”; (2) BG Group’s interest in MetroGAS was not a Treaty-protected “investment”; and (3) BG Group initiated arbitration without first litigating its claims in Argentina’s courts, despite Article 8’s requirement. Id., at 143a–171a. In Argentina’s view, “failure by BG to bring its grievance to Argentine courts for 18 months renders its claims in this arbitration inadmissible.” Id., at 162a. In late December 2007, the arbitration panel reached a final decision. It began by determining that it had “jurisdiction” to consider the merits of the dispute. In support of that determination, the tribunal concluded that BG Group was an “investor,” that its interest in MetroGAS amounted to a Treaty-protected “investment,” and that Argentina’s own conduct had waived, or excused, BG Group’s failure to comply with Article 8’s local litigation requirement. Id., at 99a, 145a, 161a, 171a. The panel pointed out that in 2002, the President of Argentina had issued a decree staying for 180 days the execution of its courts’ final judgments (and injunctions) in suits claiming harm as a result of the new economic measures. Id., at 166a–167a. In addition, Argentina had established a “renegotiation process” for public service contracts, such as its contract with MetroGAS, to alleviate the negative impact of the new economic measures. Id., at 129a, 131a. But Argentina had simultaneously barred from participation in that “process” firms that were litigating against Argentina in court or in arbitration. Id., at 168a–171a. These measures, while not making litigation in Argentina’s courts literally impossible, nonetheless “hindered” recourse “to the domestic judiciary” to the point where the Treaty implicitly excused compliance with the local litigation requirement. Id., at 165. Requiring a private party in such circumstances to seek relief in Argentina’s courts for 18 months, the panel concluded, would lead to “absurd and unreasonable result[s].” Id., at 166a. On the merits, the arbitration panel agreed with Argentina that it had not “expropriate[d]” BG Group’s investment, but also found that Argentina had denied BG Group “fair and equitable treatment.” Id., at 222a–223a, 240a–242a. It awarded BG Group $185 million in damages. Id., at 297a. C In March 2008, both sides filed petitions for review in the District Court for the District of Columbia. BG Group sought to confirm the award under the New York Convention and the Federal Arbitration Act. See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Art. IV, June 10, 1958, 21 U. S. T. 2519, T. I. A. S. No. 6997 (New York Convention) (providing that a party may apply “for recognition and enforcement” of an arbitral award subject to the Convention); 9 U. S. C. §§204, 207 (providing that a party may move “for an order confirming [an arbitral] award” in a federal court of the “place designated in the agreement as the place of arbitration if such place is within the United States”). Argentina sought to vacate the award in part on the ground that the arbitrators lacked jurisdiction. See §10(a)(4) (a federal court may vacate an arbitral award “where the arbitrators exceeded their powers”). The District Court denied Argentina’s claims and confirmed the award. 764 F. Supp. 2d 21 (DC 2011); 715 F. Supp. 2d 108 (DC 2010). But the Court of Appeals for the District of Columbia Circuit reversed. 665 F. 3d 1363 (2012). In the appeals court’s view, the interpretation and application of Article 8’s local litigation requirement was a matter for courts to decide de novo, i.e., without deference to the views of the arbitrators. The Court of Appeals then went on to hold that the circumstances did not excuse BG Group’s failure to comply with the requirement. Rather, BG Group must “commence a lawsuit in Argentina’s courts and wait eighteen months before filing for arbitration.” Id., at 1373. Because BG Group had not done so, the arbitrators lacked authority to decide the dispute. And the appeals court ordered the award vacated. Ibid. BG Group filed a petition for certiorari. Given the importance of the matter for international commercial ar-bitration, we granted the petition. See, e.g., K. Van-develde, Bilateral Investment Treaties: History, Policy& Interpretation 430–432 (2010) (explaining that dispute-resolution mechanisms allowing for arbitration are a “critical element” of modern day bilateral investment treaties); C. Dugan, D. Wallace, N. Rubins, & B. Sabahi, Investor-State Arbitration 51–52, 117–120 (2008) (referring to the large number of investment treaties that provide for arbitration, and explaining that some also impose prearbitration requirements such as waiting periods, amicable negotiations, or exhaustion of local remedies). II As we have said, the question before us is who—court or arbitrator—bears primary responsibility for interpreting and applying Article 8’s local court litigation provision. Put in terms of standards of judicial review, should a United States court review the arbitrators’ interpretation and application of the provision de novo, or with the deference that courts ordinarily show arbitral decisions on matters the parties have committed to arbitration? Compare, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 942 (1995) (example where a “court makes up its mind about [an issue] independently” because the parties did not agree it should be arbitrated), with Oxford Health Plans LLC v. Sutter, 569 U. S. ___, ___ (2013) (slip op., at 4) (example where a court defers to arbitrators because the parties “ ‘bargained for’ ” arbitral resolution of the question (quoting Eastern Associated Coal Corp. v. Mine Workers, 531 U. S. 57, 62 (2000) )). See also Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U. S. 576, 588 (2008) (on matters committed to arbitration, the Federal Arbitration Act provides for “just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway” and to prevent it from be-coming “merely a prelude to a more cumbersome andtime-consuming judicial review process” (internal quotation marks omitted)); Eastern Associated Coal Corp., supra, at 62 (where parties send a matter to arbitration, a court will set aside the “arbitrator’s interpretation of what their agreement means only in rare instances”). In answering the question, we shall initially treat the document before us as if it were an ordinary contract between private parties. Were that so, we conclude, the matter would be for the arbitrators. We then ask whether the fact that the document in question is a treaty makes a critical difference. We conclude that it does not. III Where ordinary contracts are at issue, it is up to the parties to determine whether a particular matter is primarily for arbitrators or for courts to decide. See, e.g., Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582 (1960) (“[A]rbitration 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”). Ifthe contract is silent on the matter of who primarilyis to decide “threshold” questions about arbitration,courts determine the parties’ intent with the help ofpresumptions. On the one hand, courts presume that the parties intend courts, not arbitrators, to decide what we have called disputes about “arbitrability.” These include questions such as “whether the parties are bound by a given arbitration clause,” or “whether an arbitration clause in a con-cededly binding contract applies to a particular type of controversy.” Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79, 84 (2002) ; accord, Granite Rock Co. v. Teamsters, 561 U. S. 287 –300 (2010) (disputes over “formation of the parties’ arbitration agreement” and “its enforceability or applicability to the dispute” at issue are “matters . . . the court must resolve” (internal quotation marks omitted)). See First Options, supra, at 941, 943–947 (court should decide whether an arbitration clause applied to a party who “had not personally signed” the document containing it); AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 651 (1986) (court should decide whether a particular labor-management layoff dispute fell within the arbitration clause of a collective-bargaining contract); John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543 –548 (1964) (court should decide whether an arbitration provision survived a corporate merger). See generally AT&T Technologies, supra, at 649 (“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”). On the other hand, courts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration. See Howsam, supra, at 86 (courts assume parties “normally expect a forum-based decisionmaker to decide forum-specific procedural gateway matters” (emphasis added)). These procedural matters include claims of “waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 25 (1983) . And they include the satisfaction of “ ‘prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate.’ ” Howsam, supra, at 85 (quoting the Revised Uniform Arbitration Act of 2000 §6, Comment 2, 7 U. L. A. 13 (Supp. 2002); emphasis deleted). See also §6(c) (“An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled”); §6, Comment 2 (explaining that this rule reflects “the holdings of the vast majority of state courts” and collecting cases). The provision before us is of the latter, procedural, variety. The text and structure of the provision make clear that it operates as a procedural condition precedent to arbitration. It says that a dispute “shall be submitted to international arbitration” if “one of the Parties so requests,” as long as “a period of eighteen months has elapsed” since the dispute was “submitted” to a local tribunal and the tribunal “has not given its final decision.” Art. 8(2). It determines when the contractual duty to arbitrate arises, not whether there is a contractual duty to arbitrate at all. Cf. 13 R. Lord, Williston on Contracts §38:7, pp. 435, 437; §38:4, p. 422 (4th ed. 2013) (a “condition precedent” determines what must happen before “a contractual duty arises” but does not “make the validity of the contract depend on its happening” (emphasis added)). Neither does this language or other language in Article 8 give substantive weight to the local court’s determinations on the matters at issue between the parties. To the contrary, Article 8 provides that only the “arbitration decision shall be final and binding on both Parties.” Art. 8(4). The litigation provision is consequently a purely procedural requirement—a claims-processing rule that governs when the arbitration may begin, but not whether it may occur or what its substantive outcome will be on the issues in dispute. Moreover, the local litigation requirement is highly analogous to procedural provisions that both this Court and others have found are for arbitrators, not courts, primarily to interpret and to apply. See Howsam, supra, at 85 (whether a party filed a notice of arbitration within the time limit provided by the rules of the chosen arbitral forum “is a matter presumptively for the arbitrator, not for the judge”); John Wiley, supra, at 555–557 (same, in respect to a mandatory prearbitration grievance procedure that involved holding two conferences). See also Dialysis Access Center, LLC v. RMS Lifeline, Inc., 638 F. 3d 367, 383 (CA1 2011) (same, in respect to a prearbitration “good faith negotiations” requirement); Lumbermens Mut. Cas. Co. v. Broadspire Management Servs., Inc., 623 F. 3d 476, 481 (CA7 2010) (same, in respect to a prearbitration filing of a “Disagreement Notice”). Finally, as we later discuss in more detail, see infra, at 13–14, we can find nothing in Article 8 or elsewhere in the Treaty that might overcome the ordinary assumption. It nowhere demonstrates a contrary intent as to the delegation of decisional authority between judges and arbitrators. Thus, were the document an ordinary contract, it would call for arbitrators primarily to interpret and to apply the local litigation provision. IV A We now relax our ordinary contract assumption and ask whether the fact that the document before us is a treaty makes a critical difference to our analysis. The Solicitor General argues that it should. He says that the local litigation provision may be “a condition on the State’s consent to enter into an arbitration agreement.” Brief for United States as Amicus Curiae 25. He adds that courts should “review de novo the arbitral tribunal’s resolution of objections based on an investor’s non-compliance” with such a condition. Ibid. And he recommends that we remand this case to the Court of Appeals to determine whether the court-exhaustion provision is such a condition. Id., at 31–33. 1 We do not accept the Solicitor General’s view as applied to the treaty before us. As a general matter, a treaty isa contract, though between nations. Its interpretation normally is, like a contract’s interpretation, a matter of determining the parties’ intent. Air France v. Saks, 470 U. S. 392, 399 (1985) (courts must give “the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties”); Sullivan v. Kidd, 254 U. S. 433, 439 (1921) (“[T]reaties are to be interpreted upon the principles which govern the interpretation of contracts in writing between individuals, and are to be executed in the utmost good faith, with a view to making effective the purposes of the high contracting parties”); Wright v. Henkel, 190 U. S. 40, 57 (1903) (“Treaties must receive a fair interpretation, according to the intention of the contracting parties”). And where, as here, a federal court is asked to interpret that intent pursuant to a motion to vacate or confirm an award made in the United States under the Federal Arbitration Act, it should normally apply the presumptions supplied by American law. See New York Convention, Art. V(1)(e) (award may be “set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made”); Vandevelde, Bilateral Investment Treaties, at 446 (arbitral awards pursuant to treaties are “subject to review under the arbitration law of the state where the arbitration takes place”); Dugan, Investor-State Arbitration, at 636 (“[T]he national courts and the law of the legal situs of arbitration control a losing party’s attempt to set aside [an] award”). The Solicitor General does not deny that the presumption discussed in Part III, supra (namely, the presumption that parties intend procedural preconditions to arbitration to be resolved primarily by arbitrators), applies both to ordinary contracts and to similar provisions in treaties when those provisions are not also “conditions of consent.” Brief for United States as Amicus Curiae 25–27. And, while we respect the Government’s views about the proper interpretation of treaties, e.g., Abbott v. Abbott, 560 U. S. 1, 15 (2010) , we have been unable to find any other authority or precedent suggesting that the use of the “consent” label in a treaty should make a critical differencein discerning the parties’ intent about whether courtsor arbitrators should interpret and apply the relevant provision. We are willing to assume with the Solicitor General that the appearance of this label in a treaty can show that the parties, or one of them, thought the designated matter quite important. But that is unlikely to be conclusive. For parties often submit important matters to arbitration. And the word “consent” could be attached to a highly procedural precondition to arbitration, such as a waiting period of several months, which the parties are unlikely to have intended that courts apply without saying so. See, e.g., Agreement on Encouragement and Reciprocal Protection of Investments, Art. 9, Netherlands-Slovenia, Sept. 24, 1996, Netherlands T. S. No. 296 (“Each Contracting Party hereby consents to submit any dispute . . . which they can not [sic] solve amicably within three months . . . to the International Center for Settlement of Disputesfor settlement by conciliation or arbitration”), online at www.rijksoverheid.nl/documenten-en-publicaties/besluiten/2006/10/17/slovenia.html (all Internet materials as visited on Feb. 28, 2014, and available in Clerk of Court’s case file); Agreement for the Promotion and Protection ofInvestments, Art. 8(1), United Kingdom-Egypt, June 11, 1975, 14 I. L. M. 1472 (“Each Contracting Party hereby consents to submit” a dispute to arbitration if “agreement cannot be reached within three months between the parties”). While we leave the matter open for future argument, we do not now see why the presence of the term “consent” in a treaty warrants abandoning, or increasing the complexity of, our ordinary intent-determining framework. See Howsam, 537 U. S., at 83–85; First Options, 514 U. S., at 942–945; John Wiley, 376 U. S., at 546–549, 555–559. 2 In any event, the treaty before us does not state that the local litigation requirement is a “condition of consent” to arbitration. Thus, we need not, and do not, go beyond holding that, in the absence of explicit language in atreaty demonstrating that the parties intended a different delegation of authority, our ordinary interpretive framework applies. We leave for another day the question of interpreting treaties that refer to “conditions of consent” explicitly. See, e.g., United States-Korea Free Trade Agreement, Art. 11.18, Feb. 10, 2011 (provision entitled “Conditions and Limitations on Consent of Each Party” and providing that “[n]o claim may be submitted toarbitration under this Section” unless the claimantwaives in writing “any right” to press his claim beforean “administrative tribunal or court”), online at www.ustr.gov/trade-agreements/free-trade-agreements/korus-fta/final-text; North American Free Trade Agreement, Arts. 1121–1122, Dec. 17, 1992, 32 I. L. M. 643–644 (pro-viding that each party’s “[c]onsent to [a]rbitration” is conditioned on fulfillment of certain “procedures,” one of which is a waiver by an investor of his right to litigate the claim being arbitrated). See also 2012 U. S. Model Bilateral Investment Treaty, Art. 26 (entitled “Conditions and limitations on Consent of Each Party”), online at www.ustr.gov / sites / default / files / BIT %20text%20for%20ACIEP%20Meeting.pdf. And we apply our ordinary presumption that the interpretation and application of procedural provisions such as the provision before us are primarily for the arbitrators. B A treaty may contain evidence that shows the parties had an intent contrary to our ordinary presumptions about who should decide threshold issues related to arbitration. But the treaty before us does not show any such contrary intention. We concede that the local litigation requirement appears in ¶(1) of Article 8, while the Article does not mention arbitration until the subsequent paragraph, ¶(2). Moreover, a requirement that a party exhaust its remedies in a country’s domestic courts before seeking to arbitrate may seem particularly important to a country offering protections to foreign investors. And the placing of an important matter prior to any mention of arbitration at least arguably suggests an intent by Argentina, the United Kingdom, or both, to have courts rather than arbitrators apply the litigation requirement. These considerations, however, are outweighed by others. As discussed supra, at 8–9, the text and structure of the litigation requirement set forth in Article 8 make clear that it is a procedural condition precedent to arbitration—a sequential step that a party must follow before giving notice of arbitration. The Treaty nowhere says that the provision is to operate as a substantive condition on the formation of the arbitration contract, or that it is a matter of such elevated importance that it is to be decided by courts. International arbitrators are likely more familiar than are judges with the expectations of foreign investors and recipient nations regarding the operation of the provision. See Howsam, supra, at 85 (comparative institutional expertise a factor in determining parties’ likely intent). And the Treaty itself authorizes the use of international arbitration associations, the rules of which provide that arbitrators shall have the authority to interpret provisions of this kind. Art. 8(3) (providing that the parties may refer a dispute to the International Centre for the Settlement of Investment Disputes (ICSID) or to arbitrators appointed pursuant to the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL)); accord, UNCITRAL Arbitration Rules, Art. 23(1) (rev. 2010 ed.) (“[A]rbitral tribunal shall have the power to rule on its own jurisdiction”); ICSID Convention, Regulations and Rules, Art. 41(1) (2006 ed.) (“Tribunal shall be the judge of its own competence”). Cf. Howsam, supra, at 85 (giving weight to the parties’ incorporation of the National Association of Securities Dealers’ Code of Arbitration into their contract, which provided for similar arbitral authority, as evidence that they intended arbitrators to “interpret and apply the NASD time limit rule”). The upshot is that our ordinary presumption applies and it is not overcome. The interpretation and application of the local litigation provision is primarily for the arbi-trators. Reviewing courts cannot review their decisionde novo. Rather, they must do so with considerabledeference. C The dissent interprets Article 8’s local litigation provision differently. In its view, the provision sets forth not a condition precedent to arbitration in an already-binding arbitration contract (normally a matter for arbitrators to interpret), but a substantive condition on Argentina’s con-sent to arbitration and thus on the contract’s formationin the first place (normally something for courts to interpret). It reads the whole of Article 8 as a “unilateral standing offer” to arbitrate that Argentina and the United Kingdom each extends to investors of the other country. Post, at 9 (opinion of Roberts, C. J.). And it says that the local litigation requirement is one of the essential “ ‘terms in which the offer was made.’ ” Post, at 6 (quoting Eliason v. Henshaw, 4 Wheat. 225, 228 (1819); emphasis deleted). While it is possible to read the provision in this way, doing so is not consistent with our case law interpreting similar provisions appearing in ordinary arbitration contracts. See Part III, supra. Consequently, interpreting the provision in such a manner would require us to treat treaties as warranting a different kind of analysis. And the dissent does so without supplying any different set of general principles that might guide that analysis. That is a matter of some concern in a world where foreign investment and related arbitration treaties increasingly matter. Even were we to ignore our ordinary contract principles, however, we would not take the dissent’s view. As we have explained, the local litigation provision on its face concerns arbitration’s timing, not the Treaty’s effective date; or whom its arbitration clause binds; or whether that arbitration clause covers a certain kind of dispute. Cf. Granite Rock, 561 U. S., at 296–303 (ratification date); First Options, 514 U. S., at 941, 943–947 (parties); AT&T Technologies, 475 U. S., at 651 (kind of dispute). The dissent points out that Article 8(2)(a) “does not simply require the parties to wait for 18 months before proceeding to arbitration,” but instructs them to do something—to “submit their claims for adjudication.” Post, at 8. That is correct. But the something they must do has no direct impact on the resolution of their dispute, for as we previously pointed out, Article 8 provides that only the decision of the arbitrators (who need not give weight to the local court’s decision) will be “final and binding.” Art. 8(4). The provision, at base, is a claims-processing rule. And the dissent’s efforts to imbue it with greater significance fall short. The treatises to which the dissent refers also fail to support its position. Post, at 3, 6. Those authorities primarily describe how an offer to arbitrate in an investment treaty can be accepted, such as through an investor’s filing of a notice of arbitration. See J. Salacuse, The Law of Investment Treaties 381 (2010); Schreuer, Consent to Arbitration, in The Oxford Handbook of International Investment Law 830, 836–837 (P. Muchlinski, F. Ortino, & C. Schreuer eds. 2008); Dugan, Investor-State Arbitration, at 221–222. They do not endorse the dissent’s reading of the local litigation provision or of provisions like it. To the contrary, the bulk of international authority supports our view that the provision functions as a purely procedural precondition to arbitrate. See 1 G. Born, International Commercial Arbitration 842 (2009) (“A substantial body of arbitral authority from investor-state disputes concludes that compliance with procedural mechanisms in an arbitration agreement (or bilateral investment treaty) is not ordinarily a jurisdictional prerequisite”); Brief for Professors and Practitioners of Arbitration Law as Amici Curiae 12–16 (to assume the parties intended de novo review of the provision by a court “is likely toset United States courts on a collision course with the international regime embodied in thousands of [bilateral investment treaties]”). See also Schreuer, Consent to Arbitration, supra, at 846–848 (“clauses of this kind . . . creat[e] a considerable burden to the party seeking arbitration with little chance of advancing the settlement of the dispute,” and “the most likely effect of a clause of this kind is delay and additional cost”). In sum, we agree with the dissent that a sovereign’s consent to arbitration is important. We also agree that sovereigns can condition their consent to arbitrate by writing various terms into their bilateral investment treaties. Post, at 9–10. But that is not the issue. The question is whether the parties intended to give courts or arbitrators primary authority to interpret and apply a threshold provision in an arbitration contract—when the contract is silent as to the delegation of authority. We have already explained why we believe that where, as here, the provision resembles a claims-processing requirement and is not a requirement that affects the arbitration contract’s validity or scope, we presume that the parties (even if they are sovereigns) intended to give that authority to the arbitrators. See Parts III, IV–A andIV–B, supra. V Argentina correctly argues that it is nonetheless en-titled to court review of the arbitrators’ decision to excuse BG Group’s noncompliance with the litigation requirement, and to take jurisdiction over the dispute. It asks us to provide that review, and it argues that even if the proper standard is “a [h]ighly [d]eferential” one, it should still prevail. Brief for Respondent 50. Having the relevant materials before us, we shall provide that review. But we cannot agree with Argentina that the arbitrators “ ‘exceeded their powers’ ” in concluding they had jurisdiction. Ibid. (quoting 9 U. S. C. §10(a)(4)). The arbitration panel made three relevant determinations: (1) “As a matter of treaty interpretation,” the local litigation provision “cannot be construed as an absolute impediment to arbitration,” App. to Pet. for Cert. 165a; (2) Argentina enacted laws that “hindered” “recourse to the domestic judiciary” by those “whose rights were allegedly affected by the emergency measures,” id., at 165a–166a; that sought “to prevent any judicial interference with the emergency legislation,” id., at 169a; and that “excluded from the renegotiation process” for public service contracts “any licensee seeking judicial redress,” ibid.; (3) under these circumstances, it would be “absurd and unreasonable” to read Article 8 as requiring an investor to bring its grievance to a domestic court before arbitrating. Id., at 166a. The first determination lies well within the arbitrators’ interpretive authority. Construing the local litigation provision as an “absolute” requirement would mean Argentina could avoid arbitration by, say, passing a law that closed down its court system indefinitely or that prohibited investors from using its courts. Such an interpretation runs contrary to a basic objective of the investment treaty. Nor does Argentina argue for an absolute interpretation. As to the second determination, Argentina does not argue that the facts set forth by the arbitrators are incorrect. Thus, we accept them as valid. The third determination is more controversial. Argen-tina argues that neither the 180-day suspension of courts’ issuances of final judgments nor its refusal to allow litigants (and those in arbitration) to use its contract renegotiation process, taken separately or together, warrants suspending or waiving the local litigation requirement. We would not necessarily characterize these actions as rendering a domestic court-exhaustion requirement “absurd and unreasonable,” but at the same time we cannot say that the arbitrators’ conclusions are barred by the Treaty. The arbitrators did not “ ‘stra[y] from interpretation and application of the agreement’ ” or otherwise “ ‘effectively “dispens[e]” ’ ” their “ ‘own brand of . . . justice.’ ” Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662, 671 (2010) (providing that it is only when an arbitrator engages in such activity that “ ‘his decision may be unenforceable’ ” (quoting Major League Baseball Players Assn. v. Garvey, 532 U. S. 504, 509 (2001) (per curiam)). Consequently, we conclude that the arbitrators’ jurisdictional determinations are lawful. The judgment of the Court of Appeals to the contrary is reversed. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus BG GROUP plc v. REPUBLIC OF ARGENTINA certiorari to the united states court of appeals for the district of columbia circuit No. 12–138. Argued December 2, 2013—Decided March 5, 2014 An investment treaty (Treaty) between the United Kingdom and Argentina authorizes a party to submit a dispute “to the decision of the competent tribunal of the Contracting Party in whose territory the investment was made,” i.e., a local court, Art. 8(1); and permits arbitration, as relevant here, “where, after a period of eighteen months has elapsed from the moment when the dispute was submitted to [that] tribunal . . . , the said tribunal has not given its final decision,” Art. 8(2)(a)(i). Petitioner BG Group plc, a British firm, belonged to a consortium with a majority interest in MetroGAS, an Argentine entity awarded an exclusive license to distribute natural gas in Buenos Aires. At the time of BG Group’s investment, Argentine law provided that gas “tariffs” would be calculated in U. S. dollars and would be set at levels sufficient to assure gas distribution firms a reasonable return. But Argentina later amended the law, changing (among other things) the calculation basis to pesos. MetroGAS’ profits soon became losses. Invoking Article 8, BG Group sought arbitration, which the parties sited in Washington, D. C. BG Group claimed that Argentina’s new laws and practices violated the Treaty, which forbids the “expropriation” of investments and requires each nation to give “fair and equitable treatment” to investors from the other. Argentina denied those claims, but also argued that the arbitrators lacked “jurisdiction” to hear the dispute because, as relevant here, BG Group had not complied with Article 8’s local litigation requirement. The arbitration panel concluded that it had jurisdiction, finding, among other things, that Argentina’s conduct (such as also enacting new laws that hindered recourse to its judiciary by firms in BG Group’s situation) had excused BG Group’s failure to comply with Article 8’s requirement. On the merits, the panel found that Argentina had not expropriated BG Group’s investment but had denied BG Group “fair and equitable treatment.” It awarded damages to BG Group. Both sides sought review in federal district court: BG Group to confirm the award under the New York Convention and the Federal Arbitration Act (FAA), and Argentina to vacate the award, in part on the ground that the arbitrators lacked jurisdiction under the FAA. The District Court confirmed the award, but the Court of Appeals for the District of Columbia Circuit vacated. It found that the interpretation and application of Article 8’s requirement were matters for courts to decide de novo, i.e., without deference to the arbitrators’ views; that the circumstances did not excuse BG Group’s failure to comply with the requirement; and that BG Group had to commence a lawsuit in Argentina’s courts and wait 18 months before seeking arbitration. Thus, the court held, the arbitrators lacked authority to decide the dispute. Held: 1. A court of the United States, in reviewing an arbitration award made under the Treaty, should interpret and apply “threshold” provisions concerning arbitration using the framework developed for interpreting similar provisions in ordinary contracts. Under that framework, the local litigation requirement is a matter for arbitrators primarily to interpret and apply. Courts should review their interpretation with deference. . (a) Were the Treaty an ordinary contract, it would call for arbitrators primarily to interpret and to apply the local litigation provision. In an ordinary contract, the parties determine whether a particular matter is primarily for arbitrators or for courts to decide. See, e.g., Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582. If the contract is silent on the matter of who is to decide a “threshold” question about arbitration, courts determine the parties’ intent using presumptions. That is, courts presume that the parties intended courts to decide disputes about “arbitrability,” e.g., Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, and arbitrators to decide disputes about the meaning and application of procedural preconditions for the use of arbitration, see id., at 86, including, e.g., claims of “waiver, delay, or a like defense to arbitrability,” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 25, and the satisfaction of, e.g., “ ‘time limits, notice, laches, [or] estoppel,’ ” Howsam, 537 U. S., at 85. The provision at issue is of the procedural variety. As its text and structure make clear, it determines when the contractual duty to arbitrate arises, not whether there is a contractual duty to arbitrate at all. Neither its language nor other language in Article 8 gives substantive weight to the local court’s determinations on the matters at issue between the parties. The litigation provision is thus a claims-processing rule. It is analogous to other procedural provisions found to be for arbitrators primarily to interpret and apply, see, e.g., ibid., and there is nothing in Article 8 or the Treaty to overcome the ordinary assumption. . (b) The fact that the document at issue is a treaty does not make a critical difference to this analysis. A treaty is a contract between nations, and its interpretation normally is a matter of determining the parties’ intent. Air France v. Saks, 470 U.S. 392, 399. Where, as here, a federal court is asked to interpret that intent pursuant to a motion to vacate or confirm an award made under the Federal Arbitration Act, it should normally apply the presumptions supplied by American law. The presence of a condition of “consent” to arbitration in a treaty likely does not warrant abandoning, or increasing the complexity of, the ordinary intent-determining framework. See, e.g., Howsam, supra, at 83–85. But because this Treaty does not state that the local litigation requirement is a condition of consent, the Court need not resolve what the effect of any such language would be. The Court need not go beyond holding that in the absence of language in a treaty demonstrating that the parties intended a different delegation of authority, the ordinary interpretive framework applies. . (c) The Treaty contains no evidence showing that the parties had an intent contrary to the ordinary presumptions about who should decide threshold arbitration issues. The text and structure of Article 8’s litigation requirement make clear that it is a procedural condition precedent to arbitration. Because the ordinary presumption applies and is not overcome, the interpretation and application of the provision are primarily for the arbitrators, and courts must review their decision with considerable deference. . 2. While Argentina is entitled to court review (under a properly deferential standard) of the arbitrators’ decision to excuse BG Group’s noncompliance with the litigation requirement, that review shows that the arbitrators’ determinations were lawful. Their conclusion that the litigation provision cannot be construed as an absolute impediment to arbitration, in all cases, lies well within their interpretative authority. Their factual findings that Argentina passed laws hindering recourse to the local judiciary by firms similar to BG Group are undisputed by Argentina and are accepted as valid. And their conclusion that Argentina’s actions made it “absurd and unreasonable” to read Article 8 to require an investor in BG Group’s position to bring its grievance in a domestic court, before arbitrating, is not barred by the Treaty. . 665 F.3d 1363, reversed. Breyer, J., delivered the opinion of the Court, in which Scalia, Thomas, Ginsburg, Alito, and Kagan, JJ., joined, and in which Sotomayor, J., joined except for Part IV–A–1. Sotomayor, J., filed an opinion concurring in part. Roberts, C. J., filed a dissenting opinion, in which Kennedy, J., joined.

Article 8 of an investment treaty between the United Kingdom and Argentina contains a dispute-resolution pro-vision provision, applicable to disputes between one of those na-tions and an investor from the other. The provision authorizes either party to submit a dispute to the decision of the competent tribunal of the contracting party in whose territory the investment was made, i.e., a local court. And it provides for arbitration where, after a period of eighteen months has elapsed from the moment when the dispute was submitted to the tribunal, the said tribunal has not given its final decision, but the Parties are still in dispute. In 2003, the petitioner British firm, invoking Article 8 of the Treaty, sought arbitration under the New York Convention and the Federal Arbitration Act. The parties appointed arbitrators; agreed to site the arbitration in Washington, D. C.; and between 2004 and 2006, the arbitrators decided motions, received evidence, and conducted hearings. The arbitrators essentially claimed that Argentina's new laws and regulatory practices violated provisions in the Treaty forbidding the "expropriation" of investments and requiring that each nation give fair and equitable treatment to investors from one. Argentina denied these claims, while also arguing that the arbitration tribunal lacked jurisdiction because (1) petitioner was not a Treaty-protected "investor"; (2) MetroGAS was not an Argentina-protected investment-protected interest; and (3) Argentina was not. The arbitration panel concluded that the parties had failed to satisfy the local litigation requirement of Article 8(2)(a), and that, despite the fact that the tribunal had initiated claims in late December, late January, and early December, the claims were inadmissible by the tribunal. Ultimately, the arbitration panel found that the negotiations amounted to an arbitration dispute in support of the local court requirement, and that the Treaty amounted to a treaty-protected aninvestment. It awarded the petitioner $185 million in damages, and the Court of Appeals reversed, holding that the circumstances did not excuse petitioner's failure to comply with the requirement, but rather that, because it had not done so, it lacked authority to decide the dispute. Held: 1. Where ordinary contracts are at issue, it is up to the parties to determine whether a particular matter is primarily for arbitrators or for courts to decide. Ifthe contract is silent on the matter of who primarilyis to decide threshold questions about arbitration, and courts determine the parties' intent with the help ofpresumptions. On the one hand, courts presume that the Parties intend courts, not arbitrators, to decide what they have called disputes about arbitration. On the other hand, the provision operates as a procedural condition precedent to arbitration. It is a claims-processing rule that governs when the arbitration may begin, but not whether it may occur or what its substantive outcome will be on the issues in dispute, and it is highly analogous to procedural provisions that both this Court and others have found are for arbitrator, not courts, primarily to interpret and to apply. Thus, were the document an ordinary contract, it would call for arbitrators primarily to interpret and apply.. 2. The United States, in reviewing an arbitration award made under the treaty, should not interpret and apply the Local Court Litigation Rule de novo, or with the deference that courts ordinarily owe arbitration decisions. . (a) The interpretation and application of the Local litigation Rule does not overcome the ordinary assumption that courts or arbitrators should have primary responsibility for interpreting and applying the Local Linguistic Rule to an underlying controversy. Article 8 does not give substantive weight to courtsor arbitrators' determinations on the matters at issue between the parties, and nothing in Article 8 or elsewhere in the treaty might overcome that assumption. Although a sovereign's consent to arbitration is important, it cannot condition it to consent to the arbitration. Moreover, sovereigns can condition their consent to consent primarily to envo review of the arbitration contract. Here, the language of a local litigation provision is a non-exhaustion requirement. While it is possible to read the provision in such a way, doing so is not consistent with case law interpreting similar provisions appearing in ordinary arbitration contracts. Moreover, interpreting the provision as an absolute impediment to arbitration runs contrary to a basic objective of the investment treaty. And the treatises to which the dissent refers also fail to support its position. Those authorities primarily describe how an offer to arbitrate can be accepted, see, e.g., Schreuer, Consent to Arbitration, in The Oxford Handbook of International Investment Law 830, 836. They do not endorse the provision or of provisions like it. Nor does the bulk of international authority support the view that the provision functions as a purely procedural precondition to arbitration. Pp. 468. (b) There is no merit to the argument that the International Arbitration Commission (IEC) and the Arbitrators do not

2013_12-158

https://www.oyez.org/cases/2013/12-158

. The horrors of chemical warfare were vividly captured by John Singer Sargent in his 1919 painting Gassed. The nearly life-sized work depicts two lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession. The painting reflects the devastation that Sargent witnessed in the aftermath of the Second Battle of Arras during World War I. That battle and others like it led to an overwhelming consensus in the international commu-nity that toxic chemicals should never again be used as weapons against human beings. Today that objective is reflected in the international Convention on Chemical Weapons, which has been ratified or acceded to by 190 countries. The United States, pursuant to the Federal Government’s constitutionally enumerated power to make treaties, ratified the treaty in 1997. To fulfill the United States’ obligations under the Convention, Congress en-acted the Chemical Weapons Convention Implementation Act of 1998. The Act makes it a federal crime for a person to use or possess any chemical weapon, and it punishes violators with severe penalties. It is a statute that, like the Convention it implements, deals with crimes of deadly seriousness. The question presented by this case is whether the Implementation Act also reaches a purely local crime: an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water. Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach. The Chemical Weapons Convention Implementation Act contains no such clear indication, and we accordingly conclude that it does not cover the unremarkable local offense at issue here. I A In 1997, the President of the United States, upon the advice and consent of the Senate, ratified the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction. S. Treaty Doc. No. 103–21, 1974 U. N. T. S. 317. The nations that ratified the Convention (State Parties) had bold aspirations for it: “general and complete disarmament under strict and effective international control, including the prohibition and elimination of all types of weapons of mass destruction.” Convention Preamble, ibid. This purpose traces its origin to World War I, when “[o]ver a million casualties, up to 100,000 of them fatal, are estimated to have been caused by chemicals . . . , a large part following the introduction of mustard gas in 1917.” Kenyon, Why We Need a Chemical Weapons Convention and an OPCW, in The Creation of the Organisation for the Prohibition of Chemical Weapons 1, 4 (I. Kenyon & D. Feakes eds. 2007) (Kenyon & Feakes). The atrocities of that war led the community of nations to adopt the 1925 Geneva Protocol, which prohibited the use of chemicals as a method of warfare. Id., at 5. Up to the 1990s, however, chemical weapons remained in use both in and out of wartime, with devastating consequences. Iraq’s use of nerve agents and mustard gas during its war with Iran in the 1980s contributed to international support for a renewed, more effective chemical weapons ban. Id., at 6, 10–11. In 1994 and 1995, long-held fears of the use of chemical weapons by terrorists were realized when Japanese extremists carried out two attacks using sarin gas. Id., at 6. The Convention was conceived as an effort to update the Geneva Protocol’s protections and to expand the prohibition on chemical weapons beyond state actors in wartime. Convention Preamble, 1974 U. N. T. S. 318 (the State Parties are “[d]etermined for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons, . . . thereby complementing the obligations assumed under the Geneva Protocol of 1925”). The Convention aimed to achieve that objective by prohibiting the development, stockpiling, or use of chemical weapons by any State Party or person within a State Party’s jurisdiction. Arts. I, II, VII. It also established an elaborate reporting process requiring State Parties to destroy chemical weapons under their control and submit to inspection and monitoring by an international organization based in The Hague, Netherlands. Arts. VIII, IX. The Convention provides: “(1) Each State Party to this Convention undertakes never under any circumstances: “(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; “(b) To use chemical weapons; “(c) To engage in any military preparations to use chemical weapons; “(d) To assist, encourage or induce, in any way, any-one to engage in any activity prohibited to a State Party under this Convention.” Art. I, id., at 319. “Chemical Weapons” are defined in relevant part as “[t]oxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes.” Art. II(1)(a), ibid. “Toxic Chemical,” in turn, is defined as “Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.” Art. II(2), id., at 320. “Purposes Not Prohibited Under this Convention” means “[i]ndustrial, agricultural, research, medical, pharmaceutical or other peaceful purposes,” Art. II(9)(a), id., at 322, and other specific purposes not at issue here, Arts. II(9)(b)–(d). Although the Convention is a binding international agreement, it is “not self-executing.” W. Krutzsch & R. Trapp, A Commentary on the Chemical Weapons Convention 109 (1994). That is, the Convention creates obligations only for State Parties and “does not by itself give rise to domestically enforceable federal law” absent “implementing legislation passed by Congress.” Medellín v. Texas, 552 U. S. 491 , n. 2 (2008). It instead provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.” Art. VII(1), 1974 U. N. T. S. 331. “In particular,” each State Party shall “[p]rohibit natural and legal persons anywhere . . . under its jurisdiction . . . from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.” Art. VII (1)(a), id., at 331–332. Congress gave the Convention domestic effect in 1998 when it passed the Chemical Weapons Convention Implementation Act. See 112Stat. 2681–856. The Act closely tracks the text of the treaty: It forbids any person knowingly “to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.” 18 U. S. C. §229(a)(1). It defines “chemical weapon” in relevant part as “[a] toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter as long as the type and quantity is consistent with such a purpose.” §229F(1)(A). “Toxic chemical,” in turn, is defined in general as “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. The term includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.” §229F(8)(A). Finally, “purposes not prohibited by this chapter” is defined as “[a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity,” and other specific purposes. §229F(7). A person who violates section 229 may be subject to severe punishment: imprisonment “for any term of years,” or if a victim’s death results, the death penalty or imprisonment “for life.” §229A(a). B Petitioner Carol Anne Bond is a microbiologist from Lansdale, Pennsylvania. In 2006, Bond’s closest friend, Myrlinda Haynes, announced that she was pregnant. When Bond discovered that her husband was the child’s father, she sought revenge against Haynes. Bond stole a quantity of 10-chloro-10H-phenoxarsine (an arsenic-based compound) from her employer, a chemical manufacturer. She also ordered a vial of potassium dichromate (a chemical commonly used in printing photographs or cleaning laboratory equipment) on Amazon.com. Both chemicals are toxic to humans and, in high enough doses, potentially lethal. It is undisputed, however, that Bond did not intend to kill Haynes. She instead hoped that Haynes would touch the chemicals and develop an uncomfortable rash. Between November 2006 and June 2007, Bond went to Haynes’s home on at least 24 occasions and spread the chemicals on her car door, mailbox, and door knob. These attempted assaults were almost entirely unsuccessful. The chemicals that Bond used are easy to see, and Haynes was able to avoid them all but once. On that occasion, Haynes suffered a minor chemical burn on her thumb, which she treated by rinsing with water. Haynes repeatedly called the local police to report the suspicious substances, but they took no action. When Haynes found powder on her mailbox, she called the police again, who told her to call the post office. Haynes did so, and postal inspectors placed surveillance cameras around her home. The cameras caught Bond opening Haynes’s mailbox, stealing an envelope, and stuffing potassium dichromate inside the muffler of Haynes’s car. Federal prosecutors naturally charged Bond with two counts of mail theft, in violation of 18 U. S. C. §1708. More surprising, they also charged her with two countsof possessing and using a chemical weapon, in violationof section 229(a). Bond moved to dismiss the chemical weapon counts on the ground that section 229 exceeded Congress’s enumerated powers and invaded powers reserved to the States by the Tenth Amendment. The District Court denied Bond’s motion. She then entered a conditional guilty plea that reserved her right to appeal. The District Court sentenced Bond to six years in federal prison plus five years of supervised release, and ordered her to pay a $2,000 fine and $9,902.79 in restitution. Bond appealed, raising a Tenth Amendment challenge to her conviction. The Government contended that Bond lacked standing to bring such a challenge. The Court of Appeals for the Third Circuit agreed. We granted certiorari, the Government confessed error, and we reversed. We held that, in a proper case, an individual may “assert injury from governmental action taken in excess of the authority that federalism defines.” Bond v. United States, 564 U. S. ___, ___ (2011) (Bond I) (slip op., at 8). We “expresse[d] no view on the merits” of Bond’s constitutional challenge. Id., at ___ (slip op., at 14). On remand, Bond renewed her constitutional argument. She also argued that section 229 does not reach her conduct because the statute’s exception for the use of chemicals for “peaceful purposes” should be understood in contradistinction to the “warlike” activities that the Convention was primarily designed to prohibit. Bond argued that her conduct, though reprehensible, was not at all “warlike.” The Court of Appeals rejected this argument. 681 F. 3d 149 (CA3 2012). The court acknowledged that the Government’s reading of section 229 would render the statute “striking” in its “breadth” and turn every “kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.” Id., at 154, n. 7. But the court nevertheless held that Bond’s use of “ ‘highly toxic chemicals with the intent of harming Haynes’ can hardly be characterized as ‘peaceful’ under that word’s commonly understood meaning.” Id., at 154 (citation omitted). The Third Circuit also rejected Bond’s constitutional challenge to her conviction, holding that section 229 was “necessary and proper to carry the Convention into effect.” Id., at 162. The Court of Appeals relied on this Court’s opinion in Missouri v. Holland, 252 U. S. 416 (1920) , which stated that “[i]f the treaty is valid there can be no dispute about the validity of the statute” that implements it “as a necessary and proper means to execute the powers of the Government,” id., at 432. We again granted certiorari, 568 U. S. ___ (2013). II In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder. The States have broad authority to enact legislation for the public good—what we have often called a “police power.” United States v. Lopez, 514 U. S. 549, 567 (1995) . The Federal Government, by contrast, has no such authority and “can exercise only the powers granted to it,” McCulloch v. Maryland, 4 Wheat. 316, 405 (1819), including the power to make “all Laws which shall be necessary and proper for carrying into Execution” the enumerated powers, U. S. Const., Art. I, §8, cl. 18. For nearly two centuries it has been “clear” that, lacking a police power, “Congress cannot punish felonies generally.” Cohens v. Virginia, 6 Wheat. 264, 428 (1821). A criminal act committed wholly within a State “cannot be made an offence against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States.” United States v. Fox, 95 U. S. 670, 672 (1878) . The Government frequently defends federal criminal legislation on the ground that the legislation is authorized pursuant to Congress’s power to regulate interstate commerce. In this case, however, the Court of Appeals held that the Government had explicitly disavowed that argument before the District Court. 681 F. 3d, at 151, n. 1. As a result, in this Court the parties have devoted significant effort to arguing whether section 229, as applied to Bond’s offense, is a necessary and proper means of executing the National Government’s power to make treaties. U. S. Const., Art. II, §2, cl. 2. Bond argues that the lower court’s reading of Missouri v. Holland would remove all limits on federal authority, so long as the Federal Government ratifies a treaty first. She insists that to effectively afford the Government a police power whenever it implements a treaty would be contrary to the Framers’ careful decision to divide power between the States and the National Government as a means of preserving liberty. To the extent that Holland authorizes such usurpation of traditional state authority, Bond says, it must be either limited or overruled. The Government replies that this Court has never held that a statute implementing a valid treaty exceeds Congress’s enumerated powers. To do so here, the Government says, would contravene another deliberate choice of the Framers: to avoid placing subject matter limitations on the National Government’s power to make treaties. And it might also undermine confidence in the United States as an international treaty partner. Notwithstanding this debate, it is “a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.” Escambia County v. Mc-Millan, 466 U. S. 48, 51 (1984) (per curiam); see also Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Bond argues that section 229 does not cover her conduct. So we consider that argument first. III Section 229 exists to implement the Convention, so we begin with that international agreement. As explained, the Convention’s drafters intended for it to be a comprehensive ban on chemical weapons. But even with its broadly worded definitions, we have doubts that a treaty about chemical weapons has anything to do with Bond’s conduct. The Convention, a product of years of worldwide study, analysis, and multinational negotiation, arose in response to war crimes and acts of terrorism. See Kenyon & Feakes 6. There is no reason to think the sovereign nations that ratified the Convention were interested in anything like Bond’s common law assault. Even if the treaty does reach that far, nothing prevents Congress from implementing the Convention in the same manner it legislates with respect to innumerable other matters—observing the Constitution’s division of responsibility between sovereigns and leaving the prosecution of purely local crimes to the States. The Convention, after all, is agnostic between enforcement at the state versus federal level: It provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.” Art. VII(1), 1974 U. N. T. S. 331 (emphasis added); see also Tabassi, National Implementation: Article VII, in Kenyon & Feakes 205, 207 (“Since the creation of national law, the enforcement of it and the structure and administration of government are all sovereign acts reserved exclusively for [State Parties], it is not surprising that the Convention is so vague on the critical matter of national implementation.”). Fortunately, we have no need to interpret the scope of the Convention in this case. Bond was prosecuted under section 229, and the statute—unlike the Convention—must be read consistent with principles of federalism inherent in our constitutional structure. A In the Government’s view, the conclusion that Bond “knowingly” “use[d]” a “chemical weapon” in violation of section 229(a) is simple: The chemicals that Bond placed on Haynes’s home and car are “toxic chemical[s]” as defined by the statute, and Bond’s attempt to assault Haynes was not a “peaceful purpose.” §§229F(1), (8), (7). The problem with this interpretation is that it would “dramatically intrude[ ] upon traditional state criminal jurisdiction,” and we avoid reading statutes to have such reach in the absence of a clear indication that they do. United States v. Bass, 404 U. S. 336, 350 (1971) . Part of a fair reading of statutory text is recognizing that “Congress legislates against the backdrop” of certain unexpressed presumptions. EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) . As Justice Frankfurter put it in his famous essay on statutory interpretation, correctly reading a statute “demands awareness of certain presuppositions.” Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947). For example, we presume that a criminal statute derived from the common law carries with it the requirement of a culpable mental state—even if no such limitation appears in the text—unless it is clear that the Legislature intended to impose strict liability. United States v. United States Gypsum Co., 438 U. S. 422, 437 (1978) . To take another example, we presume, absent a clear statement from Congress, that federal statutes do not apply outside the United States. Morrison v. National Australia Bank Ltd., 561 U. S. 247, 255 (2010) . So even though section 229, read on its face, would cover a chemical weapons crime if committed by a U. S. citizen in Australia, we would not apply the statute to such conduct absent a plain statement from Congress.[1] The notion that some things “go without saying” applies to legislation just as it does to everyday life. Among the background principles of construction that our cases have recognized are those grounded in the relationship between the Federal Government and the States under our Constitution. It has long been settled, for example, that we presume federal statutes do not abrogate state sovereign immunity, Atascadero State Hospital v. Scanlon, 473 U. S. 234, 243 (1985) , impose obligations on the States pursuant to section 5 of the Fourteenth Amendment, Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 –17 (1981), or preempt state law, Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . Closely related to these is the well-established principle that “ ‘it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides’ ” the “usual constitutional balance of federal and state powers.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) (quoting Atascadero, supra, at 243). To quote Frankfurter again, if the Federal Government would “ ‘radically readjust[ ] the balance of state and national authority, those charged with the duty of legislating [must be] reasonably explicit’ ” about it. BFP v. Resolution Trust Corporation, 511 U. S. 531, 544 (1994) (quoting Some Reflections, supra, at 539–540; second alteration in original). Or as explained by Justice Marshall, when legislation “affect[s] the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” Bass, supra, at 349. We have applied this background principle when construing federal statutes that touched on several areas of traditional state responsibility. See Gregory, supra, at 460 (qualifications for state officers); BFP, supra, at 544 (titles to real estate); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 174 (2001) (land and water use). Perhaps the clearest example of traditional state authority is the punishment of local criminal activity. United States v. Morrison, 529 U. S. 598, 618 (2000) . Thus, “we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction.” Bass, 404 U. S., at 349. In Bass, we interpreted a statute that prohibited any convicted felon from “ ‘receiv[ing], possess[ing], or transport[ing] in commerce or affecting commerce . . . any firearm.’ ” Id., at 337. The Government argued that the statute barred felons from possessing all firearms and that it was not necessary to demonstrate a connection to interstate commerce. We rejected that reading, which would “render[ ] traditionally local criminal conduct a matter for federal enforcement and would also involve a substantial extension of federal police resources.” Id., at 350. We instead read the statute more narrowly to require proof of a connection to interstate commerce in every case, thereby “preserv[ing] as an element of all the of-fenses a requirement suited to federal criminal jurisdiction alone.” Id., at 351. Similarly, in Jones v. United States, 529 U. S. 848, 850 (2000) , we confronted the question whether the federal arson statute, which prohibited burning “ ‘any . . . property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce,’ ” reached an owner-occupied private residence. Once again we rejected the Government’s “expansive interpretation,” under which “hardly a building in the land would fall outside the fed-eral statute’s domain.” Id., at 857. We instead held that the statute was “most sensibly read” more narrowly to reach only buildings used in “active employment for commercial purposes.” Id., at 855. We noted that “arson is a paradigmatic common-law state crime,” id., at 858, and that the Government’s proposed broad reading would “ ‘significantly change[ ] the federal-state balance,’ ” ibid. (quoting Bass, 404 U. S., at 349), “mak[ing] virtually every arson in the country a federal offense,” 529 U. S., at 859. These precedents make clear that it is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute. In this case, the ambiguity derives from the improbably broad reach of the key statutory definition given the term—“chemical weapon”—being defined; the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism. We conclude that, in this curious case, we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States. See Bass, supra, at 349.[2] B We do not find any such clear indication in section 229. “Chemical weapon” is the key term that defines the statute’s reach, and it is defined extremely broadly. But that general definition does not constitute a clear statement that Congress meant the statute to reach local criminal conduct. In fact, a fair reading of section 229 suggests that it does not have as expansive a scope as might at first appear. To begin, as a matter of natural meaning, an educated user of English would not describe Bond’s crime as involving a “chemical weapon.” Saying that a person “used a chemical weapon” conveys a very different idea than saying the person “used a chemical in a way that caused some harm.” The natural meaning of “chemical weapon” takes account of both the particular chemicals that the defendant used and the circumstances in which she used them. When used in the manner here, the chemicals in this case are not of the sort that an ordinary person would associate with instruments of chemical warfare. The substances that Bond used bear little resemblance to the deadly toxins that are “of particular danger to the objectives of the Convention.” Why We Need a Chemical Weapons Convention and an OPCW, in Kenyon & Feakes 17 (describing the Convention’s Annex on Chemicals, a nonexhaustive list of covered substances that are subject to special regulation). More to the point, the use of something as a “weapon” typically connotes “[a]n instrument of offensive or defensive combat,” Webster’s Third New International Dictionary 2589 (2002), or “[a]n instrument of attack or defense in combat, as a gun, missile, or sword,” American Heritage Dictionary 2022 (3d ed. 1992). But no speaker in natural parlance would describe Bond’s feud-driven act of spreading irritating chemicals on Haynes’s door knob and mailbox as “combat.” Nor do the other circumstances of Bond’s offense—an act of revenge born of romantic jealousy, meant to cause discomfort, that produced nothing more than a minor thumb burn—suggest that a chemical weapon was deployed in Norristown, Pennsylvania. Potassium dichromate and 10-chloro-10H-phenoxarsine might be chemical weapons if used, say, to poison a city’s water supply. But Bond’s crime is worlds apart from such hypotheticals, and covering it would give the statute a reach exceeding the ordinary meaning of the words Congress wrote. In settling on a fair reading of a statute, it is not un-usual to consider the ordinary meaning of a defined term, particularly when there is dissonance between that ordinary meaning and the reach of the definition. In Johnson v. United States, 559 U. S. 133, 136 (2010) , for example, we considered the statutory term “ ‘violent felony,’ ” which the Armed Career Criminal Act defined in relevant part as an offense that “ ‘has as an element the use . . . of physical force against the person of another.’ ” Although “physical force against . . . another” might have meant any force, however slight, we thought it “clear that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” Id., at 140. The ordinary meaning of “chemical weapon” plays a similar limiting role here. The Government would have us brush aside the ordinary meaning and adopt a reading of section 229 that would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room. Yet no one would ordinarily describe those substances as “chemical weapons.” The Government responds that because Bond used “specialized, highly toxic” (though legal) chemicals, “this case presents no occasion to address whether Congress intended [section 229] to apply to common household substances.” Brief for United States 13, n. 3. That the statute would apply so broadly, however, is the inescapable conclusion of the Government’s position: Any parent would be guilty of a serious federal offense—possession of a chemical weapon—when, exasperated by the children’s repeated failure to clean the goldfish tank, he considers poisoning the fish with a few drops of vinegar. We are reluctant to ignore the ordinary meaning of “chemical weapon” when doing so would transform a statute passed to implement the international Convention on Chemical Weapons into one that also makes it a federal offense to poison goldfish. That would not be a “realistic assessment[ ] of congressional intent.” Post, at 6 (Scalia, J., concurring in judgment). In light of all of this, it is fully appropriate to apply the background assumption that Congress normally preserves “the constitutional balance between the National Government and the States.” Bond I, 564 U. S., at ___ (slip op., at 10). That assumption is grounded in the very structure of the Constitution. And as we explained when this case was first before us, maintaining that constitutional balance is not merely an end unto itself. Rather, “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Ibid. The Government’s reading of section 229 would “ ‘alter sensitive federal-state relationships,’ ” convert an astonishing amount of “traditionally local criminal conduct” into “a matter for federal enforcement,” and “involve a substantial extension of federal police resources.” Bass, 404 U. S., at 349–350. It would transform the statute from one whose core concerns are acts of war, assassination, and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults. As the Government reads section 229, “hardly” a poisoning “in the land would fall outside the federal statute’s domain.” Jones, 529 U. S., at 857. Of course Bond’s conduct is serious and unacceptable—and against the laws of Pennsylvania. But the background principle that Congress does not normally intrude upon the police power of the States is critically important. In light of that principle, we are reluctant to conclude that Congress meant to punish Bond’s crime with a federal prosecution for a chemical weapons attack. In fact, with the exception of this unusual case, the Federal Government itself has not looked to section 229 to reach purely local crimes. The Government has identified only a handful of prosecutions that have been brought under this section. Brief in Opposition 27, n. 5. Most of those involved either terrorist plots or the possession of extremely dangerous substances with the potential to cause severe harm to many people. See United States v. Ghane, 673 F. 3d 771 (CA8 2012) (defendant possessed enough potassium cyanide to kill 450 people); United States v. Crocker, 260 Fed. Appx. 794 (CA6 2008) (defendant attempted to acquire VX nerve gas and chlorine gas as part of a plot to attack a federal courthouse); United States v. Krar, 134 Fed. Appx. 662 (CA5 2005) (per curiam) (defendant possessed sodium cyanide); United States v. Fries, 2012 WL 689157 (D Ariz., Feb. 28, 2012) (defendant set off a homemade chlorine bomb in the victim’s driveway, requiring evacuation of a residential neighborhood). The Federal Government undoubtedly has a substantial interest in enforcing criminal laws against assassination, terrorism, and acts with the potential to cause mass suffering. Those crimes have not traditionally been left predominantly to the States, and nothing we have said here will disrupt the Government’s authority to prosecute such offenses. It is also clear that the laws of the Commonwealth of Pennsylvania (and every other State) are sufficient to prosecute Bond. Pennsylvania has several statutes that would likely cover her assault. See 18 Pa. Cons. Stat. §§2701 (2012) (simple assault), 2705 (reckless endangerment), 2709 (harassment).[3] And state authorities regularly enforce these laws in poisoning cases. See, e.g., Gamiz, Family Survives Poisoned Burritos, Allentown, Pa., Morning Call, May 18, 2013 (defendant charged with assault, reckless endangerment, and harassment for feeding burritos poisoned with prescription medication to her husband and daughter); Cops: Man Was Poisoned Over 3 Years, Harrisburg, Pa., Patriot News, Aug. 12, 2012, p. A11 (defendant charged with assault and reckless endangerment for poisoning a man with eye drops over three years so that “he would pay more attention to her”). The Government objects that Pennsylvania authorities charged Bond with only a minor offense based on her “harassing telephone calls and letters,” Bond I, 564 U. S., at ___ (slip op., at 2), and declined to prosecute her for assault. But we have traditionally viewed the exercise of state officials’ prosecutorial discretion as a valuable feature of our constitutional system. See Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978) . And nothing in the Convention shows a clear intent to abrogate that feature. Prosecutorial discretion involves carefully weighing the benefits of a prosecution against the evidence needed to convict, the resources of the public fisc, and the public policy of the State. Here, in its zeal to prosecute Bond, the Federal Government has “displaced” the “public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign,” that Bond does not belong in prison for a chemical weapons offense. Bond I, supra, at ___ (slip op., at 12); see also Jones, supra, at 859 (Stevens, J., concurring) (federal prosecution of a traditionally local crime “illustrates how a criminal law like this may effectively displace a policy choice made by the State”). As we have explained, “Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States.” Bass, 404 U. S., at 349. There is no clear indication of a contrary approach here. Section 229 implements the Convention, but Bond’s crime could hardly be more unlike the uses of mustard gas on the Western Front or nerve agents in the Iran-Iraq war that form the core concerns of that treaty. See Kenyon & Feakes 6. There are no life-sized paintings of Bond’s rival washing her thumb. And there are no apparent interests of the United States Congress or the community of nations in seeing Bond end up in federal prison, rather than dealt with (like virtually all other criminals in Pennsylvania) by the State. The Solicitor General acknowledged as much at oral argument. See Tr. of Oral Arg. 47 (“I don’t think anybody would say [that] whether or not Ms. Bond is prosecuted would give rise to an international incident”). This case is unusual, and our analysis is appropriately limited. Our disagreement with our colleagues reduces to whether section 229 is “utterly clear.” Post, at 5 (Scalia, J., concurring in judgment). We think it is not, given that the definition of “chemical weapon” in a particular case can reach beyond any normal notion of such a weapon, that the context from which the statute arose demonstrates a much more limited prohibition was intended, and that the most sweeping reading of the statute would fundamentally upset the Constitution’s balance between national and local power. This exceptional convergence of factors gives us serious reason to doubt the Government’s expansive reading of section 229, and calls for us to interpret the statute more narrowly. In sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise. * * * The Convention provides for implementation by each ratifying nation “in accordance with its constitutional processes.” Art. VII(1), 1974 U. N. T. S. 331. As James Madison explained, the constitutional process in our “compound republic” keeps power “divided between two distinct governments.” The Federalist No. 51, p. 323 (C. Rossiter ed. 1961). If section 229 reached Bond’s conduct, it would mark a dramatic departure from that constitutional structure and a serious reallocation of criminal law enforcement authority between the Federal Government and the States. Absent a clear statement of that purpose, we will not presume Congress to have authorized such a stark intrusion into traditional state authority. 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.Notes 1 Congress has in fact included just such a plain statement in section 229(c)(2): “Conduct prohibited by [section 229(a)] is within the jurisdiction of the United States if the prohibited conduct . . . takes place outside of the United States and is committed by a national of the United States.” 2 contends that the relevance of and to this case is “entirely made up,” at 3 (opinion concurring in judgment), but not because he disagrees with interpreting statutes in light of principles of federalism. Rather, he says that was a case where the statute was unclear. We agree; we simply think the statute in this case is also subject to construction, for the reasons given. As for , argues that the discussion of federalism in that case was beside the point. at 4. We do not read that way; the Court adopted the “most sensibl[e] read[ing]” of the statute, 529 U. S., at 855, which suggests that other sensible readings were possible. In arriving at its fair reading of the statute, the Court considered the dramatic extent to which the Government’s broader interpretation would have expanded “the federal statute’s domain.” at 857. We do the same here. 3 Pennsylvania also prohibits using “a weapon of mass destruction,” including a “chemical agent.” 18 Pa. Cons. Stat. §§2716(a), (i). Just as we conclude that Bond’s offense cannot be fairly described as the use of a chemical weapon, Pennsylvania authorities apparently determined that her crime did not involve a “weapon of mass destruction.”

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus BOND v. UNITED STATES certiorari to the united states court of appeals for the third circuit No. 12–158. Argued November 5, 2013—Decided June 2, 2014 To implement the international Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction, Congress enacted the Chemical Weapons Convention Implementation Act of 1998. The statute forbids, among other things, any person knowingly to “possess[ ] or use . . . any chemical weapon,” 18 U. S. C. §229(a)(1). A “chemical weapon” is “[a] toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter.” §229F(1)(A). A “toxic chemical” is “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. The term includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.” §229F(8)(A). “[P]urposes not prohibited by this chapter” is defined as “[a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity,” and other specific purposes. §229F(7). Petitioner Bond sought revenge against Myrlinda Haynes—with whom her husband had carried on an affair—by spreading two toxic chemicals on Haynes’s car, mailbox, and door knob in hopes that Haynes would develop an uncomfortable rash. On one occasion Haynes suffered a minor chemical burn that she treated by rinsing with water, but Bond’s attempted assaults were otherwise entirely unsuccessful. Federal prosecutors charged Bond with violating, among other things, section 229(a). Bond moved to dismiss the chemical weapons charges on the ground that the Act violates the Tenth Amendment. When the District Court denied her motion, she pleaded guilty but reserved the right to appeal. The Third Circuit initially held that Bond lacked standing to raise her Tenth Amendment challenge, but this Court reversed. On remand, the Third Circuit rejected her Tenth Amendment argument and her additional argument that section 229 does not reach her conduct. Held: Section 229 does not reach Bond’s simple assault. . (a) The parties debate whether section 229 is a necessary and proper means of executing the Federal Government’s power to make treaties, but “normally [this] Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.” Escambia County v. McMillan, 466 U.S. 48, 51 (per curiam). Thus, this Court starts with Bond’s argument that section 229 does not cover her conduct. . (b) This Court has no need to interpret the scope of the international Chemical Weapons Convention in this case. The treaty specifies that a signatory nation should implement its obligations “in accordance with its constitutional processes.” Art. VII(1), 1974 U. N. T. S. 331. Bond was prosecuted under a federal statute, which, unlike the treaty, must be read consistent with the principles of federalism inherent in our constitutional structure. . (1) A fair reading of section 229 must recognize the duty of “federal courts to be certain of Congress’s intent before finding that federal law overrides” the “usual constitutional balance of federal and state powers,” Gregory v. Ashcroft, 501 U.S. 452, 460. This principle applies to federal laws that punish local criminal activity, which has traditionally been the responsibility of the States. This Court’s precedents have referred to basic principles of federalism in the Constitution to resolve ambiguity in federal statutes. See, e.g., United States v. Bass, 404 U.S. 336; Jones v. United States, 529 U.S. 848. Here, the ambiguity in the statute derives from the improbably broad reach of the key statutory definition, given the term—“chemical weapon”—that is being defined, the deeply serious consequences of adopting such a boundless reading, and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism, not about local assaults. Thus, the Court can reasonably insist on a clear indication that Congress intended to reach purely local crimes before interpreting section 229’s expansive language in a way that intrudes on the States’ police power. . (2) No such clear indication is found in section 229. An ordinary speaker would not describe Bond’s feud-driven act of spreading irritating chemicals as involving a “chemical weapon.” And the chemicals at issue here bear little resemblance to those whose prohibition was the object of an international Convention. Where the breadth of a statutory definition creates ambiguity, it is appropriate to look to the ordinary meaning of the term being defined (here, “chemical weapon”) in settling on a fair reading of the statute. See Johnson v. United States, 559 U.S. 133. The Government’s reading of section 229 would transform a statute concerned with acts of war, assassination, and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults. In light of the principle that Congress does not normally intrude upon the States’ police power, this Court is reluctant to conclude that Congress meant to punish Bond’s crime with a federal prosecution for a chemical weapons attack. In fact, only a handful of prosecutions have been brought under section 229, and most of those involved crimes not traditionally within the States’ purview, e.g., terrorist plots. Pennsylvania’s laws are sufficient to prosecute assaults like Bond’s, and there is no indication in section 229 that Congress intended to abandon its traditional “reluctan[ce] to define as a federal crime conduct readily denounced as criminal by the States,” Bass, supra, at 349. That principle goes to the very structure of the Constitution, and “protects the liberty of the individual from arbitrary power.” Bond v. United States, 564 U. S. ___, ___. The global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard. . 681 F.3d 149, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, and in which Alito, J., joined as to Part I. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined, and in which Alito, J., joined as to Parts I, II, and III. Alito, J., filed an opinion concurring in the judgment.

The Chemical Weapons Convention Implementation Act of 1998 makes it a federal crime for a person to use or possess any chemical weapon, and punishes violators with severe penalties. The Act provides that each State Party shall adopt the necessary measures to implement its obligations under the Convention, including enacting penal legislation with respect to such activity. The Act makes it also a crime for any person to engage in any activity prohibited to a State Party under this Convention. Held: Section 229 does not cover the unremarkable local offense of an amateur attempt by a jilted wife to injure her husband's lover, which ended up causing only a minor thumb burn readily treated by rinsing with water. . (a) In a proper case, an individual may assert injury from governmental action taken in excess of the authority that federalism defines. Bond v. United States, 564 U. S. ___, ___ (Bond I). Although the Convention is a binding international agreement, it is not self-executing, and does not give rise to domestically enforceable federal law absent Congress having expressly indicated that the law should have such reach. Here, in its zeal to prosecute Bond, the Federal Government has effectively eliminated the State Party's public policy that Bond does not belong in prison for a chemical weapons offense. Moreover, a fair reading of the Act suggests that it does not have as expansive a scope as might be at first appear. There is no clear indication that Congress meant to punish Bond's crime with a federal prosecution for the chemical weapons attack. In fact, with the exception of this unusual case, the Government itself has not looked to section 229 to reach purely local crimes, and there are no apparent interests of the United States Congress or the community of nations in seeing Bond end up in federal prison, rather than dealt with (like virtually all other criminals in Pennsylvania) by the State. And if section 229 reached Bond's conduct, it would mark a dramatic departure from the constitutional structure and a serious reallocation of criminal law enforcement authority between the Government and the States. Absent a clear statement of that purpose, this Court will not presume Congress to have authorized such a stark intrusion into traditional state authority. Pp. 681 F. 3d 149 (CA3 2012), reversed and remanded. (b) Section 229 is not a necessary and proper means of executing the National Government's power to make treaties. Even if the treaty does reach that far, nothing prevents Congress from implementing the Convention in the same manner it legislates with regard to innumerable other matters, including the Constitution's division of responsibility between sovereigns and leaving the prosecution of purely local acts of war, assassination, and terrorism to the States, and nothing in the Convention shows a clear intent to abrogate the ordinary meaning of the term. However, the background principle that Congress does not normally intrude upon the police power of the States is critically important, and this case does not require that Congress reach Bond with a sweeping statute that would upset the normal balance between the federal and state powers. This case is unusual in that it is appropriately limited in its analysis, since the Court of Appeals, relying on Missouri v. Holland, 252 U.S. 416 (1920), concluded that the definition of a chemical weapon in a particular particular case is not so vague that it can reach the scope of the statute, and that the statute can be interpreted to reach a sweeping assault on the normal state processes of our Constitution. A sweeping statute like the one in this case provides no reason to interpret § 229 to upset the constitutional balance between federalism and state power. Furthermore, this case demonstrates that Congress did not intend to reach Bond in the manner in which the federal statute was designed to be implemented. It is not unreasonable to interpret a statute to have such sweeping scope as would be the case would be if it reached Bond, but, in fact, a broad reading would transform a statute passed to implement the Convention into one that also makes a federal offense to poison goldfish. See, e.g., id., at 855. Finally, the case is remanded for further proceedings consistent with this opinion. Applying the background assumption that Congress normally preserves a constitutional balance, such as that grounded in the very structure of the Constitution, to resolve ambiguity in a federal statute, requires that a clear indication be given by section 229 before interpreting the statute's expansive language in a way that intrudes on the States' police power. See Bass, supra, at 349. To apply this background principle, however, suggests that section 229 should not have been construed so as to intrude on Congress' usual constitutional balance... 681 F.3d 149, reversed. Reported below: (a) The District Court denied Bond's motion to dismiss the chemical weapon counts on the ground that the Act exceeded Congress' enumerated powers. (b) The Court of Appeals agreed that Bond lacked standing to bring such a

2013_12-7515

https://www.oyez.org/cases/2013/12-7515

.[1]* The Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when “death or serious bodily injury results from the use of such substance.” 21 U. S. C. §841(a)(1), (b)(1)(A)–(C) (2012 ed.). We consider whether the mandatory-minimum provision applies when use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim’s death or injury. I Joshua Banka, a long-time drug user, died on April 15, 2010, following an extended drug binge. The episode began on the morning of April 14, when Banka smoked marijuana at a former roommate’s home. Banka stole oxycodone pills from the roommate before departing and later crushed, cooked, and injected the oxycodone. Banka and his wife, Tammy Noragon Banka (Noragon), then met with petitioner Marcus Burrage and purchased one gram of heroin from him. Banka immediately cooked and injected some of the heroin and, after returning home, injected more heroin between midnight and 1 a.m. on April 15. Noragon went to sleep at around 5 a.m., shortly after witnessing Banka prepare another batch of heroin. When Noragon woke up a few hours later, she found Banka dead in the bathroom and called 911. A search of the couple’s home and car turned up syringes, 0.59 grams of heroin, alprazolam and clonazepam tablets, oxycodone pills, a bottle of hydrocodone, and other drugs. Burrage pleaded not guilty to a superseding indictment alleging two counts of distributing heroin in violation of §841(a)(1). Only one of those offenses, count 2, is atissue here. (Count 1 related to an alleged distribution of heroin five months earlier than the sale to Banka.) Count 2 alleged that Burrage unlawfully distributed heroin on April 14, 2010, and that “death . . . resulted from the use of th[at] substance”—thus subjecting Burrage to the 20-year mandatory minimum of §841(b)(1)(C). Two medical experts testified at trial regarding the cause of Banka’s death. Dr. Eugene Schwilke, a forensic toxicologist, determined that multiple drugs were present in Banka’s system at the time of his death, including heroin metabolites, codeine, alprazolam, clonazepam metab-olites, and oxycodone. (A metabolite is a “product ofmetabolism,” Webster’s New International Dictionary 1544 (2d ed. 1950), or, as the Court of Appeals put it, “what a drug breaks down into in the body,” 687 F. 3d 1015, 1018, n. 2 (CA8 2012).) Although morphine, a heroin metabolite, was the only drug present at a level abovethe therapeutic range—i.e., the concentration normally present when a person takes a drug as prescribed—Dr. Schwilke could not say whether Banka would have lived had he not taken the heroin. Dr. Schwilke nonetheless concluded that heroin “was a contributing factor” inBanka’s death, since it interacted with the other drugs to cause “respiratory and/or central nervous system depression.” App. 196. The heroin, in other words, contributed to an overall effect that caused Banka to stop breathing. Dr. Jerri McLemore, an Iowa state medical examiner, came to similar conclusions. She described the cause of death as “mixed drug intoxication” with heroin, oxycodone, alprazolam, and clonazepam all playing a “contributing” role. Id., at 157. Dr. McLemore could not say whether Banka would have lived had he not taken the heroin, but observed that Banka’s death would have been “[v]ery less likely.” Id., at 171. The District Court denied Burrage’s motion for a judgment of acquittal, which argued that Banka’s death did not “result from” heroin use because there was no evidence that heroin was a but-for cause of death. Id., at 30. The court also declined to give Burrage’s proposed jury instructions regarding causation. One of those instructions would have required the Government to prove that heroin use “was the proximate cause of [Banka’s] death.” Id., at 236. Another would have defined proximate cause as“a cause of death that played a substantial part in bringing about the death,” meaning that “[t]he death musthave been either a direct result of or a reasonably probable consequence of the cause and except for the cause the death would not have occurred.” Id., at 238. The court instead gave an instruction requiring the Government to prove “that the heroin distributed by the Defendant was a contributing cause of Joshua Banka’s death.” Id., at 241–242. The jury convicted Burrage on both counts, and the court sentenced him to 20 years’ imprisonment, consistent with §841(b)(1)(C)’s prescribed minimum. The Court of Appeals for the Eighth Circuit affirmed Burrage’s convictions. 687 F. 3d 1015. As to the causation-in-fact element of count 2, the court held that theDistrict Court’s contributing-cause instruction was consistent with its earlier decision in United States v. Monnier, 412 F. 3d 859, 862 (CA8 2005). See 687 F. 3d, at 1021. As to proximate cause, the court held that Burrage’s proposed instructions “d[id] not correctly state the law” because “a showing of ‘proximate cause’ is not required.” Id., at 1020 (quoting United States v. McIntosh, 236 F. 3d 968, 972–973 (CA8 2001)). We granted certiorari on two questions: Whether the defendant may be convicted under the “death results” pro-vision (1) when the use of the controlled substance was a “contributing cause” of the death, and (2) without separately instructing the jury that it must decide whether the victim’s death by drug overdose was a foreseeable result of the defendant’s drug-trafficking offense. 569 U. S. ___ (2013). II As originally enacted, the Controlled Substances Act, 84Stat. 1242, 21 U. S. C. §801 et seq., “tied the penalties for drug offenses to both the type of drug and the quantity involved, with no provision for mandatory minimum sentences.” DePierre v. United States, 564 U. S. ___, ___ (2011) (slip op., at 3–4). That changed in 1986 when Congress enacted the Anti-Drug Abuse Act, 100Stat. 3207, which redefined the offense categories, increased the maximum penalties and set minimum penalties for many offenders, including the “death results” enhancement at issue here. See id., at 3207–4. With respect to violations involving distribution of a Schedule I or II substance (the types of drugs defined as the most dangerous and addictive[2]) the Act imposes sentences ranging from 10 years to life imprisonment for large-scale distributions, §841(b)(1)(A), from 5 to 40 years for medium-scale distribu-tions, §841(b)(1)(B), and not more than 20 years forsmaller distributions, §841(b)(1)(C), the type of offense at issue here. These default sentencing rules do not apply, however, when “death or serious bodily injury results from the use of [the distributed] substance.” §841(b)(1)(A)–(C). In those instances, the defendant “shall be sentenced to a term of imprisonment which . . . shall be not less than twenty years or more than life,” a substantial fine, “or both.”[3] Ibid. Because the “death results” enhancement increased the minimum and maximum sentences to which Burrage was exposed, it is an element that must be submitted to the jury and found beyond a reasonable doubt. See Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 14–15); Apprendi v. New Jersey, 530 U. S. 466, 490 (2000) . Thus, the crime charged in count 2 of Burrage’s superseding indictment has two principal elements: (i) knowing or intentional distribution of heroin, §841(a)(1),[4] and (ii) death caused by (“resulting from”) the use of that drug, §841(b)(1)(C). III A The law has long considered causation a hybrid concept, consisting of two constituent parts: actual cause and legal cause. H. Hart & A. Honoré, Causation in the Law 104 (1959). When a crime requires “not merely conduct but also a specified result of conduct,” a defendant generally may not be convicted unless his conduct is “both (1) the actual cause, and (2) the ‘legal’ cause (often called the ‘proximate cause’) of the result.” 1 W. LaFave, Substantive Criminal Law §6.4(a), pp. 464–466 (2d ed. 2003) (hereinafter LaFave); see also ALI, Model Penal Code §2.03,p. 25 (1985). Those two categories roughly coincide with the two questions on which we granted certiorari. We find it necessary to decide only the first: whether the use of heroin was the actual cause of Banka’s death in the sense that §841(b)(1)(C) requires. The Controlled Substances Act does not define the phrase “results from,” so we give it its ordinary meaning. See Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187 (1995) . A thing “results” when it “[a]rise[s] as an effect, issue, or outcome from some action, process or design.” 2 The New Shorter Oxford English Dictionary 2570 (1993). “Results from” imposes, in other words, a requirement of actual causality. “In the usual course,” this requires proof “ ‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___, ___ (2013) (slip op., at 5–6) (quoting Restatement of Torts §431, Comment a (1934)). The Model Penal Code reflects this traditional understanding; it states that “[c]onduct is the cause of a result” if “it is an antecedent but for which the result in question would not have occurred.” §2.03(1)(a). That formulation represents “the minimum requirement for a finding of causation when a crime is defined in terms of conduct causing a particular result.” Id., Explanatory Note (emphasis added); see also United States v. Hatfield, 591 F. 3d 945, 948 (CA7 2010) (but for “is the minimum concept of cause”); Callahan v. Cardinal Glennon Hospital, 863 S. W. 2d 852, 862 (Mo. 1993) (same). Thus, “where A shoots B, who is hit and dies, we can say that A [actually] caused B’s death, since but for A’s conduct B would not have died.” LaFave 467–468 (italics omitted). The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so—if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived. See, e.g., State v. Frazier, 339 Mo. 966, 974–975, 98 S. W. 2d 707, 712–713 (1936). This but-for requirement is part of the common understanding of cause. Consider a baseball game in which the visiting team’s leadoff batter hits a home run in the top of the first inning. If the visiting team goes on to win by a score of 1 to 0, every person competent in the English language and familiar with the American pastime would agree that the victory resulted from the home run. This is so because it is natural to say that one event is the outcome or consequence of another when the former would not have occurred but for the latter. It is beside the point that the victory also resulted from a host of other necessary causes, such as skillful pitching, the coach’s decision to put the leadoff batter in the lineup, and the league’s decision to schedule the game. By contrast, it makes little sense to say that an event resulted from or was the outcome of some earlier action if the action merely played a nonessential contributing role in producing the event. If the visiting team wound up winning 5 to 2 rather than 1 to 0, one would be surprised to read in the sports page that the victory resulted from the leadoff batter’s early, non-dispositive home run. Where there is no textual or contextual indication to the contrary, courts regularly read phrases like “results from” to require but-for causality. Our interpretation of statutes that prohibit adverse employment action “because of” an employee’s age or complaints about unlawful workplace discrimination is instructive. Last Term, we addressed Title VII’s antiretaliation provision, which states in part: “It shall be an unlawful employment practice for an employer . . . to discriminate against any individual . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U. S. C. §2000e–3(a) (2006 ed.) (emphasis added). Given the ordinary meaning of the word “because,” we held that §2000e–3(a) “require[s] proof that the desire to retaliate was [a] but-for cause of the challenged employment action.” Nassar, supra, at ___ (slip op., at 11–12). The same result obtained in an earlier case interpreting a provision in the Age Discrimination in Employment Act that makes it “unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U. S. C. §623(a)(1) (emphasis added). Relying on dictionary definitions of “[t]he words ‘because of’ ”—which resemble the definition of “results from” recited above—we held that “[t]o establish a disparate-treatment claim under the plain language of [§623(a)(1)] . . . a plaintiff must prove that age was [a] ‘but for’ cause of the employer’s adverse decision.” Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176 (2009) .[5] Our insistence on but-for causality has not been restricted to statutes using the term “because of.” We have, for instance, observed that “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship,” Safeco Ins. Co. of America v. Burr, 551 U. S. 47, 63 (2007) , and that “the phrase, ‘by reason of,’ requires at least a showing of ‘but for’ causation,” Gross, supra, at 176 (citing Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. 639 –654 (2008)). See also Holmes v. Securities Investor Protection Corporation, 503 U. S. 258 –268 (1992) (explaining that a statute permitting recovery for injuries suffered “ ‘by reason of’ ” the defendant’s unlawful conduct “require[s] a showing that the defendant’s violation . . . was,” among other things, “a ‘but for’ cause of his injury”). State courts, which hear and decide the bulk of the Nation’s criminal matters, usually interpret similarly worded crim-inal statutes in the same manner. See, e.g., People v. Wood, 276 Mich. App. 669, 671, 741 N. W. 2d 574, 575–578 (2007) (construing the phrase “[i]f the violation results in the death of another individual” to require proof of but-for causation (emphasis deleted)); State v. Hennings, 791 N. W. 2d 828, 833–835 (Iowa 2010) (statute prohibiting “ ‘offenses . . . committed against a person or a person’s property because of the person’s race’ ” or other protected trait requires discriminatory animus to be a but-for cause of the offense); State v. Richardson, 295 N. C. 309, 322–323, 245 S. E. 2d 754, 763 (1978) (statute requiring suppression of evidence “ ‘obtained as a result of’ ” police misconduct “requires, at a minimum,” a but-for causal relationship between the misconduct and collection of the evidence). In sum, it is one of the traditional background principles “against which Congress legislate[s],” Nassar, 570 U. S., at ___ (slip op., at 6–7), that a phrase such as “results from” imposes a requirement of but-for causation. The Government argues, however, that distinctive problems associated with drug overdoses counsel in favor of dispensing with the usual but-for causation requirement. Addicts often take drugs in combination, as Banka did in this case, and according to the National Center for Injury Prevention and Control, at least 46 percent of overdose deaths in 2010 involved more than one drug. See Brief for United States 28–29. This consideration leads the Government to urge an interpretation of “results from” under which use of a drug distributed by the defendant need not be a but-for cause of death, nor even independently sufficient to cause death, so long as it contributes to an aggregate force (such as mixed-drug intoxication) that is itself a but-for cause of death. In support of its argument, the Government can point to the undoubted reality that courts have not always required strict but-for causality, even where criminal liability is at issue. The most common (though still rare) instance of this occurs when multiple sufficient causes independently, but concurrently, produce a result. See Nassar, supra, at ___ (slip op., at 6); see also LaFave 467 (describing these cases as “unusual” and “numerically in the minority”). To illustrate, if “A stabs B, inflicting a fatal wound; while at the same moment X, acting independently, shoots B in the head . . . also inflicting [a fatal] wound; and B dies from the combined effects of the two wounds,” A will generally be liable for homicide even though his conduct was not a but-for cause of B’s death (since B would have died from X’s actions in any event). Id., at 468 (italics omitted). We need not accept or reject the special rule developed for these cases, since there was no evidence here that Banka’s heroin use was an independently sufficient cause of his death. No expert was prepared to say that Banka would have died from the heroin use alone. Thus, the Government must appeal to a second, less demanding (but also less well established) line of author-ity, under which an act or omission is considered a cause-in-fact if it was a “substantial” or “contributing” factor in producing a given result. Several state courts have adopted such a rule, see State v. Christman, 160 Wash. App. 741, 745, 249 P. 3d 680, 687 (2011); People v. Jennings, 50 Cal. 4th 616, 643, 237 P. 3d 474, 496 (2010); People v. Bailey, 451 Mich. 657, 676–678, 549 N. W. 2d 325, 334–336 (1996); Commonwealth v. Osachuk, 43 Mass. App. 71, 72–73, 681 N. E. 2d 292, 294 (1997), but the American Law Institute declined to do so in its Model Penal Code, see ALI, 39th Annual Meeting Proceedings 135–141 (1962); see also Model Penal Code §2.03(1)(a). One prominent authority on tort law asserts that “a broader rule . . . has found general acceptance: The defendant’s conduct is a cause of the event if it was a material element and a substantial factor in bringing it about.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §41, p. 267 (5th ed. 1984) (footnote omitted). But the authors of that treatise acknowledge that, even in the tort context, “[e]xcept in the classes of cases indicated” (an apparent reference to the situation where each of two causes is independently effective) “no case has been found where the defendant’s act could be called a substantial factor when the event would have occurred without it.” Id., at 268. The authors go on to offer an alternative rule—functionally identical to the one the Government argues here—that “[w]hen the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, and application of the but-for rule to them individually would absolve all of them, the conduct of each is a cause in fact of the event.” Ibid. Yet, as of 1984, “no judicial opinion ha[d] approved th[at] formulation.” Ibid., n. 40. The “death results” enhancement became law just two years later. We decline to adopt the Government’s permissive interpretation of §841(b)(1). The language Congress enacted requires death to “result from” use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed. Congress could have written §841(b)(1)(C) to impose a mandatory minimum when the underlying crime “contributes to” death or serious bodily injury, or adopted a modified causation test tailored to cases involving concurrent causes, as five States have done, see Ala. Code §13A–2–5(a) (2005); Ark. Code Ann. §5–2–205 (2006); Me. Rev. Stat. Ann., Tit. 17–A, §33 (2006); N. D. Cent. Code Ann. §12.1–02–05 (Lexis 2012); Tex. Penal Code Ann. §6.04 (West 2011). It chose instead to use language that imports but-for causality. Especially in the interpretation of a criminal statute subject to the rule of lenity, see Moskal v. United States, 498 U. S. 103 –108 (1990), we cannot give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant. B The Government objects that the ordinary meaning of “results from” will “unduly limi[t] criminal responsibility” and “cannot be reconciled with sound policy.” Brief for United States 24. We doubt that the requirement of but-for causation for this incremental punishment will prove a policy disaster. A cursory search of the Federal Reporter reveals that but-for causation is not nearly the insuper-able barrier the Government makes it out to be. See, e.g., United States v. Krieger, 628 F. 3d 857, 870–871 (CA7 2010) (affirming “death results” conviction based on expert testimony that, although the victim had several drugs in her system, the drug distributed by the defendant was a but-for cause of death); United States v. Webb, 655 F. 3d 1238, 1254–1255 (CA11 2011) (per curiam) (same). Moreover, even when the prosecution is unable to prove but-for causation, the defendant will still be liable for violating §841(a)(1) and subject to a substantial default sentence under §841(b)(1). Indeed, it is more likely the Government’s proposal that “cannot be reconciled with sound policy,” given the need for clarity and certainty in the criminal law. The judicial authorities invoking a “substantial” or “contributing” factor test in criminal cases differ widely in their application of it. Compare Wilson v. State, 24 S. W. 409, 410 (Tex. Crim. App. 1893) (an act is an actual cause if it “contributed materially” to a result, even if other concurrent acts would have produced that result on their own), with Cox v. State, 305 Ark. 244, 248, 808 S. W. 2d 306, 309 (1991) (causation cannot be found where other concurrent causes were clearly sufficient to produce the result and the defendant’s act was clearly insufficient to produce it (applying Ark. Code Ann. §5–2–205 (1987)).[6] Here the Government is uncertain about the precise application of the test that it proposes. Taken literally, its “contributing-cause” test would treat as a cause-in-fact every act or omission that makes a positive incremental contribution, however small, to a particular result. See Brief for State of Alaska et al. as Amici Curiae 20; see also Black’s Law Dictionary 250 (9th ed. 2009) (defining “contributing cause” as “[a] factor that—though not the primary cause—plays a part in producing a result”). But at oral argument the Government insisted that its test excludes causes that are “not important enough” or “too insubstantial.” Tr. of Oral Arg. 28. Unsurprisingly, it could not specify how important or how substantial a cause must be to qualify. See id., at 41–42. Presumably the lower courts would be left to guess. That task would be particularly vexing since the evidence in §841(b)(1) cases is often expressed in terms of probabilities and percentages. One of the experts in this case, for example, testified that Banka’s death would have been “[v]ery less likely” had he not used the heroin that Burrage provided. App. 171. Is it sufficient that use of a drug made the victim’s death 50 percent more likely? Fifteen percent? Five? Who knows. Uncertainty of that kind cannot be squared with the beyond-a-reasonable-doubt standard applicable in criminal trials or with the need to express criminal laws in terms ordinary persons can comprehend. See United States v. L. Cohen Grocery Co., 255 U. S. 81 –90 (1921). But in the last analysis, these always-fascinating policy discussions are beside the point. The role of this Court is to apply the statute as it is written—even if we think some other approach might “ ‘accor[d] with good policy.’ ” Commissioner v. Lundy, 516 U. S. 235, 252 (1996) (quoting Badaracco v. Commissioner, 464 U. S. 386, 398 (1984) ). As we have discussed, it is written to require but-for cause. * * * We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U. S. C. §841(b)(1)(C) unless such use is a but-for cause of the death or injury. The Eighth Circuit affirmed Burrage’s conviction based on a markedly different understanding of the statute, see 687 F. 3d, at 1020–1024, and the Government concedes that there is no “evidence that Banka would have lived but for his heroin use,” Brief for United States 33. Burrage’s conviction with respect to count 2 of the superseding indictment is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 * joins all but Part III–B of this opinion. 2 Schedule I drugs, such as heroin, have “a high potential for abuse,” “no currently accepted medical use in treatment in the UnitedStates,” and “a lack of accepted safety” even “under medical supervision.” §812(b)(1). Schedule II drugs, such as methamphetamine, likewise have “a high potential for abuse” and a propensity to cause “severe psychological or physical dependence” if misused. . 3 Although this language, read literally, suggests that courts may impose a fine a prison term, it is undisputed here that the “death results” provision mandates a prison sentence. Courts of Appeals have concluded, in effect, that the “or” is a scrivener’s error, see, , v. , 856 F. 2d 1484, 1486 (CA11 1988) (). The best evidence of that is the concluding sentence of §841(b)(1)(C), which states that a court “shall not place on probation or suspend the sentence of any person sentenced under the provisions of this subparagraph .” (Emphasis added.) 4 Violation of §841(a)(1) is thus a lesser included offense of the crime charged in count 2. It is undisputed that Burrage is guilty of that lesser included offense. 5 v. , , is not to the contrary. The three opinions of six Justices in that case did not eliminate the but-for-cause requirement imposed by the “because of ” provision of –2(a), but allowed a showing that discrimination was a “motivating” or “substantial” factor to shift the burden of persuasion to the employer to establish the absence of but-for cause. See v. , 570 U. S. ___, ___ (2013) (slip op., at 7–10). Congress later amended the statute to dispense with but-for causality. Civil Rights Act of 1991, Tit. I, §107(a), (codified at –2(m)). 6 Some cases apply what they call a “substantial factor” test only when multiple independently sufficient causes “operat[e] together to cause the result.” v. , 748 So. 2d 963, 967 (Fla. 1999); see also v. , 863 S. W. 2d 852, 862–863 (Mo. 1993). We will not exaggerate the confusion by counting these as genuine “substantial factor” cases.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus BURRAGE v. UNITED STATES certiorari to the united states court of appeals for the eighth circuit No. 12–7515. Argued November 12, 2013—Decided January 27, 2014 Long-time drug user Banka died following an extended binge that included using heroin purchased from petitioner Burrage. Burrage pleaded not guilty to a superseding indictment alleging, inter alia, that he had unlawfully distributed heroin and that “death . . . resulted from the use of th[at] substance”—thus subjecting Burrage to a 20-year mandatory minimum sentence under the penalty enhancement provision of the Controlled Substances Act, 21 U. S. C. §841(b)(1)(C). After medical experts testified at trial that Banka might have died even if he had not taken the heroin, Burrage moved for a judgment of acquittal, arguing that Banka’s death could only “result from” heroin use if there was evidence that heroin was a but-for cause of death. The court denied the motion and, as relevant here, instructed the jury that the Government only had to prove that heroin was a contributing cause of death. The jury convicted Burrage, and the court sentenced him to 20 years. In affirming, the Eighth Circuit upheld the District Court’s jury instruction. Held: At least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable for penalty enhancement under §841(b)(1)(C) unless such use is a but-for cause of the death or injury. . (a) Section 841(b)(1)(C)’s “death results” enhancement, which increased the minimum and maximum sentences to which Burrage was exposed, is an element that must be submitted to the jury and found beyond a reasonable doubt. See, e.g., Alleyne v. United States, 570 U. S. ___, ___. . (b) Because the Controlled Substances Act does not define “results from,” the phrase should be given its ordinary meaning. See Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187. Ordinarily, that phrase imposes a requirement of actual causality, i.e., proof “ ‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___, ___. Similar statutory phrases—“because of,” see id., at ___, “ ‘based on,’ ” Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63, and “ ‘by reason of,’ ” Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176—have been read to impose a but-for causation requirement. This Court declines to adopt the Government’s permissive interpretation of “results from” to mean that use of a drug distributed by the defendant need only contribute to an aggregate force, e.g., mixed-drug intoxication, that is itself a but-for cause of death. There is no need to address a special rule developed for cases in which multiple sufficient causes independently, but concurrently, produce death, since there was no evidence that Banka’s heroin use was an independently sufficient cause of his death. And though Congress could have written §841(b)(1)(C) to make an act or omission a cause-in-fact if it was a “substantial” or “contributing” factor in producing death, Congress chose instead to use language that imports but-for causality. . (c) Whether adopting the but-for causation requirement or the Government’s interpretation raises policy concerns is beside the point, for the Court’s role is to apply the statute as written. . 687 F.3d 1015, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which the Roberts, C. J., and Kennedy, Thomas, Breyer, and Kagan, JJ., joined, and in which Alito, J., joined as to all but Part III–B. Ginsburg, J., filed an opinion concurring in the judgment, in which Sotomayor, J., joined.

The Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when death or serious bodily injury results from the use of such substance, 21 U.S. C. §841(b)(1)(C). Petitioner pleaded not guilty to a superseding indictment alleging two counts of distributing heroin violations. Count 2 alleged that petitioner unlawfully distributed heroin on April 14, 2010, and that his wife found him dead in the bathroom and called 911. A search of the couple's home and car turned up syringes containing heroin metabolites, codeine, alprazolam, clonazepam metab-olites, and oxycodone. The drug, in addition to being the only drug present at a level above the therapeutic range (i.e., the concentration normally present when a person takes a drug as prescribed), also interacted with the other drugs to cause respiratory and/or central nervous system depression. Because the enhancement increased the minimum and maximum sentences to which petitioner was exposed, it is an element that must be submitted to the jury and found beyond a reasonable doubt. Two medical experts testified at the trial regarding the cause of petitioner Banka's death, and they concluded that heroin was a contributing factor in the death, since it interacted with other drugs in causing the overall effect that caused Banka to stop breathing. However, the expert testified that heroin contributed to an overall effect causing banka to die. Although the expert could not say whether Banka would have lived had he not taken the heroin, he nevertheless concluded that the heroin played a substantial part in causing his death. He also denied petitioner Burrage a motion to acquit, but the District Court denied the motion because there was no evidence regarding heroin use. Burrage was convicted on both counts, and the Court of Appeals affirmed. As to the causation-in-fact element of count 2, the court held that the contributing-cause instruction was consistent with its earlier decision in United States v. Monnier, 412 F. 3d 859, 862. Held: The defendant may not be convicted under the mandatory minimum provision when the drug distribution by the defendant is not an independently sufficient cause of the victim's death or injury. . (a) At least where use of the drug distributed by the defendants is not independently sufficient to cause death, a defendant cannot be liable under the penalty enhancement provision unless such use is a but-for cause of death. Pp. 569 U. S. ___. (b) There is no merit to the Government's argument that the mandatory-minimum provision will encourage a more demanding line of authority, under which an act or omission is considered a cause-infact if it was a "substantial" or a contributing factor in producing a given result. Such a line is part of the common understanding of cause, and, in this case, the Government is uncertain about the precise application of the test proposed by the Government. Taking literally, its "contributing-cause" test would treat as a cause in-fact every act and omission that makes a positive incremental contribution, however small, to a particular result, so long as, without the incremental effect of the poison, he would have died. But the Government cannot be given a meaning that is different from its ordinary, accepted meaning, and disfavors the defendant. Especially in the interpretation of a criminal statute subject to the rule of lenity, such as Title VII of the Civil Rights Act of 1991, which authorizes a court to place on probation or suspend the sentence of any person sentenced under the provisions of the statute, it cannot give the text a meaning other than its ordinary meaning. See, e.g., Nassar, supra, at ___ (slip op., at 11). Moreover, the fact that courts have not always required strict but-For causality, even where criminal liability is at issue, does not mean that the requirement of the requirement will prove a policy disaster. Here, there is no evidence here that Banka had died from the heroin use alone, and no expert was prepared to say that his heroin use was such a cause. Nor can the Government accept or reject the special rule developed for these cases, whereby the predicate act combines with other factors to produce the result, as long as the other factors alone would not have done so, if, so to speak, it was the straw that broke the camel’s back. In addition, the judicial authorities invoking the test differ widely in their application of it, and some have offered an alternative rule that excludes causes that are not important enough or too insubstantial. Presumably the lower courts would be left to guess, since the probabilities of Banka dying would be particularly vexing, and since the probability of his death would be less likely in ordinary criminal trials to be squared with the percentages

2013_12-414

https://www.oyez.org/cases/2013/12-414

. When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a “ ‘doubly deferential’ ” standard of review that gives both the state court and the defense attorney the benefit of the doubt. Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 17). In this case, the Sixth Circuit failed to apply that doubly deferential standard by refusing to credit a state court’s reasonable factual finding and by assuming that counsel was ineffective where the record was silent. Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110Stat. 1214, and Strickland v. Washington, 466 U. S. 668 (1984) , do not permit federal judges to so casually second-guess the decisions of their state-court colleagues or defense attorneys, the Sixth Circuit’s decision must be reversed. I Respondent Titlow and Billie Rogers, respondent’s aunt, murdered Billie’s husband Don by pouring vodka down his throat and smothering him with a pillow. With help from attorney Richard Lustig, respondent reached an agreement with state prosecutors to testify against Billie, plead guilty to manslaughter, and receive a 7- to 15-year sentence. As confirmed at a plea hearing, Lustig reviewed the State’s evidence with respondent “over a long period of time,” and respondent understood that that evidence could support a conviction for first-degree murder. App. 43–44. The Michigan trial court approved the plea bargain. Three days before Billie Rogers’ trial was to commence, however, respondent retained a new lawyer, Frederick Toca. With Toca’s help, respondent demanded a substantially lower minimum sentence (three years, instead of seven) in exchange for the agreement to plead guilty and testify. When the prosecutor refused to accede to the new demands, respondent withdrew the plea, acknowledging in open court the consequences of withdrawal (including reinstatement of the first-degree murder charge). Without respondent’s critical testimony, Billie Rogers was acquitted, and later died. Respondent subsequently stood trial. During the course of the trial, respondent denied any intent to harm Don Rogers or any knowledge, at the time respondent covered his mouth or poured vodka down his throat, that Billie intended to harm him. Indeed, respondent testified to attempting to prevent Billie from harming her husband. The jury, however, elected to believe respondent’s previous out-of-court statements, which squarely demonstrated participation in the killing, and convicted respondent of second-degree murder. The trial court imposed a 20- to 40-year term of imprisonment. On direct appeal, respondent argued that Toca advised withdrawal of the guilty plea without taking time to learn more about the case, thereby failing to realize the strength of the State’s evidence and providing ineffective assistance of counsel. Rejecting that claim, the Michigan Court of Appeals found that Toca acted reasonably in light of his client’s protestations of innocence. That court found that respondent’s decision to hire Toca was “set in motion” by respondent’s “statement to a sheriff’s deputy that [respondent] did not commit the offense.” App. to Pet. for Cert. 101a. Applying the standard set forth by our decision in Strickland, which requires that defense counsel satisfy “an objective standard of reasonableness,” 466 U. S., at 688, the Michigan Court of Appeals concluded that “[w]hen a defendant proclaims . . . innocence . . . , it is not objectively unreasonable to recommend that the defendant refrain from pleading guilty—no matter how ‘good’ the deal may appear.” App. to Pet. for Cert. 102a. Respondent then filed a federal habeas petition under 28 U. S. C. §2254. Applying AEDPA’s deferential standard of review, the District Court concluded that the Michigan Court of Appeals’ ruling was “completely reasonable on the law and the facts” and denied relief. No. 07–CV–13614, 2010 WL 4115410, *15 (ED Mich., Oct. 19, 2010). In particular, the District Court concluded that “[c]ounsel could not be ineffective by trying to negotiate a better plea agreement for [Titlow] with Billie Rogers’s trial imminent and [Titlow] stating at the time that Billie Rogers had committed the murder without . . . assistance.” Ibid. The Sixth Circuit reversed. It found that the factual predicate for the state court’s decision—that the withdrawal of the plea was based on respondent’s assertion of innocence—was an unreasonable interpretation of the factual record, given Toca’s explanation at the withdrawal hearing that “the decision to withdraw Titlow’s plea was based on the fact that the State’s plea offer was substantially higher than the Michigan guidelines for second-degree murder.” 680 F. 3d 577, 589 (2012). Further observing that “[t]he record in this case contains no evidence” that Toca fully informed respondent of the possible consequences of withdrawing the guilty plea, the Sixth Circuit held that Toca rendered ineffective assistance of counsel that resulted in respondent’s loss of the benefit of the plea bargain. Id., at 589–592. Citing our decision in Lafler v. Cooper, 566 U. S. ___ (2012), the Sixth Circuit remanded this case with instructions that the prosecution must reoffer the original plea agreement to respondent, and that the state court should “consul[t]” the plea agreement and “fashion” a remedy for the violation of respondent’s Sixth Amendment right to effective assistance of counsel during plea bargaining. 680 F. 3d, at 592. Chief Judge Batchelder dissented on the grounds that the Michigan Court of Appeals’ decision was reasonable. Id., at 593. On remand, the prosecution followed the Sixth Circuit’s instructions and reoffered the plea agreement it had offered some 10 years before—even though, in light of Billie Rogers’ acquittal and subsequent death, respondent was no longer able to deliver on the promises originally made to the prosecution. At the plea hearing, however, respondent balked, refusing to provide a factual basis for the plea which the court could accept. Respondent admitted to pouring vodka down Don Rogers’ throat, but denied assisting in killing him or knowing that pouring vodka down his throat could lead to his death. As at trial, respondent testified to attempting to prevent Billie Rogers from harming her husband. Eventually, after conferring with current counsel (not Toca), respondent admitted to placing Don Rogers in danger by pouring vodka down his throat with the knowledge that his death could result. The trial court took the plea under advisement, where the matter stands at present. We granted certiorari. 568 U. S. ___ (2013). II AEDPA instructs that, when a federal habeas petitioner challenges the factual basis for a prior state-court decision rejecting a claim, the federal court may overturn the state court’s decision only if it was “based on an unreasonable determination of the facts in light of the evidence pre- sented in the State court proceeding.” 28 U. S. C. §2254(d)(2). The prisoner bears the burden of rebutting the state court’s factual findings “by clear and convincing evidence.” §2254(e)(1). We have not defined the precise relationship between §2254(d)(2) and §2254(e)(1), and we need not do so here. See Wood v. Allen, 558 U. S. 290, 293 (2010) . For present purposes, it is enough to reiterate “that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Id., at 301. AEDPA likewise imposes a highly deferential standard for reviewing claims of legal error by the state courts: A writ of habeas corpus may issue only if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” this Court. §2254(d)(1). AEDPA recognizes a foundational principle of our fed- eral system: State courts are adequate forums for the vindi- cation of federal rights. “[T]he States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. Under this system of dual sovereignty, we have consist- ently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States.” Tafflin v. Levitt, 493 U. S. 455, 458 (1990) . This principle applies to claimed violations of constitutional, as well as statutory, rights. See Trainor v. Hernandez, 431 U. S. 434, 443 (1977) . Indeed, “state courts have the solemn responsibility equally with the federal courts to safeguard constitutional rights,” and this Court has refused to sanction any decision that would “reflec[t] negatively upon [a] state court’s ability to do so.” Ibid. (internal quotation marks omitted). Especially where a case involves such a common claim as ineffective assistance of counsel under Strickland—a claim state courts have now adjudicated in countless criminal cases for nearly 30 years—“there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned . . . than his neighbor in the state courthouse.” Stone v. Powell, 428 U. S. 465, 494, n. 35 (1976) (internal quotation marks omitted). Recognizing the duty and ability of our state-court colleagues to adjudicate claims of constitutional wrong, AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA requires “a state prisoner [to] show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13). “If this standard is difficult to meet”—and it is—“that is because it was meant to be.” Id., at ___ (slip op., at 12). We will not lightly conclude that a State’s criminal justice system has experienced the “extreme malfunctio[n]” for which federal habeas relief is the remedy. Id., at ___ (slip op., at 13) (internal quotation marks omitted). III The record readily supports the Michigan Court of Appeals’ factual finding that Toca advised withdrawal of the guilty plea only after respondent’s proclamation of innocence. Respondent passed a polygraph denying planning to kill Don Rogers or being in the room when he died. Thereafter, according to an affidavit in the record, respondent discussed the case with a jailer, who advised against pleading guilty if respondent was not in fact guilty. App. 298 (affidavit of William Pierson). [ 1 ] That conversation “set into motion” respondent’s decision to retain Toca. Ibid., ¶8. Those facts, together with the timing of Toca’s hiring—on the eve of the trial at which respondent was to self-incriminate—strongly suggest that respondent had second thoughts about confessing in open court and proclaimed innocence to Toca. That conclusion is further bolstered by respondent’s maintenance of innocence of Don Rogers’ death at trial. Indeed, reading the record in any other way is difficult. Respondent’s first lawyer, Lustig, had negotiated a deal that was quite favorable in light of the fact, admitted by respondent in open court, that the State’s evidence could support a conviction for first-degree murder. This deal involved a guilty plea to manslaughter and a 7- to 15-year sentence—far less than the mandatory sentence of life in prison that results from a conviction for first-degree murder under Michigan law. See Mich. Comp. Laws Ann. §750.316 (West Supp. 2013). Yet after a jailer advised against pleading guilty if respondent was not guilty, something caused respondent both to fire Lustig and hire Toca (who within a few days withdrew the guilty plea), and then to maintain innocence at trial. If that something was not a desire to assert innocence, it is difficult to imagine what it was, and respondent does not offer an alternative theory. The only evidence the Sixth Circuit cited for its conclusion that the plea withdrawal was not based on respondent’s proclamation of innocence was that, when Toca moved to withdraw the guilty plea, he “did not refer to Titlow’s claims of innocence,” but instead “explained that the decision to withdraw [the] plea was based on the fact that the State’s plea offer was substantially higher than the Michigan guidelines” for manslaughter. 680 F. 3d, at 589. The Sixth Circuit believed that this fact “sufficiently rebuts the Michigan Court of Appeals’ finding that the plea withdrawal was based on Titlow’s assertion of innocence.” Ibid. But the Michigan Court of Appeals was well aware of Toca’s representations to the trial court, noting in its opinion that respondent “moved to withdraw [the] plea because the agreed upon sentence exceeded the sentencing guidelines range.” App. to Pet. for Cert. 100a. The Michigan Court of Appeals, however—unlike the Sixth Circuit—also correctly recognized that there is nothing inconsistent about a defendant’s asserting innocence on the one hand and refusing to plead guilty to manslaughter accompanied by higher-than-normal punishment on the other. Indeed, a defendant convinced of his or her own innocence may have a particularly optimistic view of the likelihood of acquittal, and therefore be more likely to drive a hard bargain with the prosecution before pleading guilty. Viewing the record as a whole, we conclude that the Sixth Circuit improperly set aside a “reasonable state-court determinatio[n] of fact in favor of its own debatable interpretation of the record.” Rice v. Collins, 546 U. S. 333, 335 (2006) . Accepting as true the Michigan Court of Appeals’ factual determination that respondent proclaimed innocence to Toca, the Sixth Circuit’s Strickland analysis cannot be sustained. Although a defendant’s proclamation of innocence does not relieve counsel of his normal responsibilities under Strickland, it may affect the advice counsel gives. The Michigan Court of Appeals’ conclusion that Toca’s advice satisfied Strickland fell within the bounds of reasonableness under AEDPA, given that respondent was claiming innocence and only days away from offering self-incriminating testimony in open court pursuant to a plea agreement involving an above-guidelines sentence. [ 2 ] See Florida v. Nixon, 543 U. S. 175, 187 (2004) (explaining that the defendant has the “ ‘ultimate authority’ ” to decide whether to accept a plea bargain); Brookhart v. Janis, 384 U. S. 1 –8 (1966) (observing that a lawyer must not “override his client’s desire . . . to plead not guilty”). The Sixth Circuit’s conclusion to the contrary was error. Even more troubling is the Sixth Circuit’s conclusion that Toca was ineffective because the “record in this case contains no evidence that” he gave constitutionally adequate advice on whether to withdraw the guilty plea. 680 F. 3d, at 590. We have said that counsel should be “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” Strickland, 466 U. S., at 690, and that the burden to “show that counsel’s performance was deficient” rests squarely on the defendant, id., at 687. The Sixth Circuit turned that presumption of effectiveness on its head. It should go without saying that the absence of evidence cannot overcome the “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Id., at 689. As Chief Judge Batchelder correctly explained in her dissent, “[w]ithout evidence that Toca gave incorrect advice or evidence that he failed to give material advice, Titlow cannot establish that his performance was deficient.” 680 F. 3d, at 595. The Sixth Circuit pointed to a single fact in support of its conclusion that Toca failed to adequately advise respondent: his failure to retrieve respondent’s file from Lustig before withdrawing the guilty plea. Id., at 590. But here, too, the Sixth Circuit deviated from Strickland’s strong presumption of effectiveness. The record does not reveal how much Toca was able to glean about respondent’s case from other sources; he may well have obtained copies of the critical materials from prosecutors or the court. (Indeed, Toca’s statement at the plea withdrawal hearing that “[t]here’s a lot of material here” strongly suggests that he did have access to a source of documentation other than Lustig’s file. App. 71.) In any event, the same considerations were relevant to entering and withdrawing the guilty plea, and respondent admitted in open court when initially pleading guilty that Lustig had explained the State’s evidence and that this evidence would support a conviction for first-degree murder. Toca was justified in relying on this admission to conclude that respondent understood the strength of the prosecution’s case and nevertheless wished to withdraw the plea. With respondent having knowingly entered the guilty plea, we think any confusion about the strength of the State’s evidence upon withdrawing the plea less than a month later highly unlikely. Despite our conclusion that there was no factual or legal justification for overturning the state court’s decision, we recognize that Toca’s conduct in this litigation was far from exemplary. He may well have violated the rules of professional conduct by accepting respondent’s publication rights as partial payment for his services, and he waited weeks before consulting respondent’s first lawyer about the case. But the Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance, and we have held that a lawyer’s violation of ethical norms does not make the lawyer per se ineffective. See Mickens v. Taylor, 535 U. S. 162, 171 (2002) . Troubling as Toca’s actions were, they were irrelevant to the narrow question that was before the Sixth Circuit: whether the state court reasonably determined that respondent was adequately advised before deciding to withdraw the guilty plea. Because the Michigan Court of Appeals’ decision that respondent was so advised is reasonable and supported by the record, the Sixth Circuit’s judgment is reversed. [ 3 ] It is so ordered. Notes 1 Respondent complains that the state court improperly relied on this affidavit, but it was respondent who provided the affidavit to the state court and asked it to rely on the affidavit as part of the ground for remanding for an evidentiary hearing. In any event, even if the state court used the affidavit for a purpose not permitted by state law—a proposition we do not endorse—that would not empower a federal court to grant habeas relief. See Estelle v. McGuire, . 2 We assume, arguendo, as did the Michigan Court of Appeals, that Toca went beyond facilitating respondent’s withdrawal of the plea and advised withdrawal, although we note that the sole basis in the record for this assertion appears to be respondent’s self-serving testimony. 3 Because we conclude that the Sixth Circuit erred in finding Toca’s representation constitutionally ineffective, we do not reach the other questions presented by this case, namely, whether respondent adequately demonstrated prejudice, and whether the Sixth Circuit’s remedy is at odds with our decision in Lafler v. Cooper, 566 U. S. ___ (2012).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus BURT, WARDEN v. TITLOW certiorari to the united states court of appeals for the sixth circuit No. 12–414. Argued October 8, 2013—Decided November 5, 2013 Respondent Titlow and Billie Rogers were arrested for the murder of Billie’s husband. After explaining to respondent that the State’s evidence could support a conviction for first-degree murder, respondent’s attorney negotiated a manslaughter plea in exchange for an agreement to testify against Billie. Three days before Billie’s trial, respondent retained a new attorney, Frederick Toca, who demanded an even lower sentence in exchange for the guilty plea and testimony. The prosecutor rejected the proposal, and respondent withdrew the original plea. Without that testimony, Billie was acquitted. Respondent was subsequently convicted of second-degree murder. On direct appeal, respondent argued that Toca provided ineffective assistance by advising withdrawal of the plea without taking time to learn the strength of the State’s evidence. The Michigan Court of Appeals rejected the claim, concluding that Toca’s actions were reasonable in light of his client’s protestations of innocence. On federal habeas review, the District Court applied the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), concluded that the Michigan Court of Appeals’ ruling was reasonable on the law and facts, and denied relief. The Sixth Circuit reversed. It found the factual predicate for the state court’s decision—that the plea withdrawal was based on respondent’s assertion of innocence—an unreasonable interpretation of the factual record, given Toca’s explanation at the withdrawal hearing that the decision to withdraw was made because the State’s original plea offer was higher than the sentencing range provided by the Michigan guidelines. It also found no evidence in the record that Toca adequately advised respondent of the consequences of withdrawal. Held: The Sixth Circuit failed to apply the “doubly deferential” standard of review recognized by the Court’s case law when it refused to credit the state court’s reasonable factual finding and assumed that counsel was ineffective where the record was silent. . (a) AEDPA recognizes the federalism principle that state courts are adequate forums for the vindication of federal statutory and constitutional rights. It erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court, requiring them to “show that the state court’s ruling . . . was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U. S. ___, ___. . (b) Here, the record readily supports the Michigan Court of Appeals’ factual finding that Toca advised withdrawal of the guilty plea only after respondent’s proclamation of innocence. The facts that respondent passed a polygraph test denying being in the room when Billie’s husband was killed, discussed the case with a jailer who advised against pleading guilty if respondent was indeed innocent, and hired Toca just three days before Billie’s trial at which respondent had agreed to self-incriminate, strongly suggest that respondent had second thoughts about confessing in open court and proclaimed innocence to Toca. The only evidence cited by the Sixth Circuit for its contrary conclusion was that Toca’s sole explanation at the withdrawal hearing focused on the fact that the State’s plea offer was substantially higher than that provided by the Michigan guidelines. The Michigan Court of Appeals was well aware of Toca’s representations to the trial court and correctly found nothing inconsistent about a defendant’s asserting innocence on the one hand and refusing to plead guilty to manslaughter accompanied by higher-than-normal punishment on the other. Accepting as true the Michigan Court of Appeals’ factual determination that respondent proclaimed innocence to Toca, the Sixth Circuit’s Strickland analysis cannot be sustained. More troubling is that court’s conclusion that Toca was ineffective because the record contained no evidence that he gave constitutionally adequate advice on whether to withdraw the plea. The Sixth Circuit turned on its head the principle that counsel should be “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” Strickland v. Washington, 466 U.S. 668, 690, with the burden to show otherwise resting squarely on the defendant, id., at 687. The single fact that Toca failed to retrieve respondent’s file from former counsel before withdrawing the guilty plea cannot overcome Strickland’s strong presumption of effectiveness. In any event, respondent admitted in open court that former counsel had explained the State’s evidence and that it would support a first-degree murder conviction. Toca was justified in relying on this admission to conclude that respondent understood the strength of the prosecution’s case. Toca’s conduct in this litigation was far from exemplary, but a lawyer’s ethical violations do not make the lawyer per se ineffective, and Toca’s questionable conduct was irrelevant to the narrow issue before the Sixth Circuit. . 680 F.3d 577, reversed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Breyer, Sotomayor, and Kagan, JJ., joined. Sotomayor, J,. filed a concurring opinion. Ginsburg, J., filed an opinion concurring in the judgment.

Respondent Titlow and Billie Rogers, husband and wife, murdered their husband by pouring vodka down his throat and smothering him with a pillow. With help from attorney Lustig, respondent reached an agreement with state prosecutors to testify against Billie, plead guilty to manslaughter, and receive a 7- to 15-year sentence. As confirmed at a plea hearing, Lustig reviewed the State's evidence with respondent over a long period of time, and understood that that evidence could support a conviction for first-degree murder. The Michigan trial court approved the plea bargain, and respondent retained a new lawyer, Toca, to plead guilty and testify. However, when the prosecutor refused to accede to respondent's demands, respondent withdrew the plea, acknowledging in open court the consequences of withdrawal (including reinstatement of the murder charge). Without respondent's critical testimony, Billie was acquitted, and later died. During the course of the trial, respondent denied any intent to harm Don Rogers or any knowledge that Billie intended to harm him. The jury, however, elected to believe respondent's previous out-of-court statements, which squarely demonstrated participation in the killing. The trial court imposed a 20- to 40-year term of imprisonment. On direct appeal, respondent argued that Toca advised withdrawal of the guilty plea without taking time to learn more about the case, thereby failing to realize the strength of the State’s evidence and providing ineffective assistance of counsel. Rejecting that claim, the Michigan Court of Appeals reversed the trial court, holding that Toc acted reasonably in light of his client's protestations of innocence. Applying the standard set forth in Strickland v. Washington, 466 U. S. 668, which requires that defense counsel satisfy an objective standard of reasonableness, the court concluded that the decision to withdraw was based on an unreasonable determination of the facts in the light of the evidence pre- sented in the State court proceeding. Respondent then filed a habeas petition under 28 U.S. C. §2254(d)(2), which provides that a federal court may overturn a state court decision only if it is based on a "doubly deferential" standard of review that gives both the state court and the defense attorney the benefit of the doubt. The District Court denied relief, and the District Court reversed. Relying on the standard of deferential review established in Wittner v. Hernandez, 563 U. s. 434 (Wittner), which held that a state-court factual determination is not unreasonable merely because the federal court would have reached a different conclusion in the first instance, and that respondent had second thoughts about confessing and proclaimed innocence to Toca. Held: The Sixth Circuit erred in finding Toca's representation constitutionally ineffective. . (a) The record readily supports the Michigan court to the contrary. The record does not reveal how much Toca was able to glean about respondent's case from other sources; he may well have obtained copies of the critical materials from prosecutors or the court. In any event, the same considerations were relevant to entering and withdrawing a guilty plea and to initially pleading guilty. Toca justified in relying on respondent's admission that the State had explained the State's evidence and that this evidence would support a murder conviction. With respondent having knowingly entered the guilty pleas, any confusion about the evidence upon withdrawing the plea less than a month later is highly unlikely. Although there was no factual or legal justification for overturning the lower court decision, there may have been an ethical violation of Toca and his rights by accepting payment for his services. However, the right to make a partial payment per se does not guarantee a lawyer the ethical guarantee that he will make the payment he is advised to make before they make a full payment. P.. (b) Respondent was reasonably advised of his rights before the Sixth Circuit advised him to withdraw his guilty plea. He provided the affidavit to the court, and asked it to rely on the affidavit as part of the ground for remanding for an evidentiary hearing. It is assumed, arguendo, that respondent went beyond facilitating respondent's withdrawal of a plea and advised withdrawal, since the sole basis in the record appears to be respondent self-serving testimony. Moreover, even if the court used the affidavit for a purpose not permitted by state law, a proposition that does not endorse, that would not empower a federal court to grant habeaas relief. This Court will not lightly conclude that a State's criminal justice system has experienced the "extreme malfunctio[n]" for which federal habbeas relief is the remedy. Lafler v. Cooper, 566 S. ___ (2012), distinguished.. 680 F. 3d 577, reversed and remanded. QUIST, C.J., announced the judgment of the Court and delivered the opinion of the

2013_13-354

https://www.oyez.org/cases/2013/13-354

. We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107Stat. 1488, 42 U. S. C. §2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest. In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies for-feited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs. Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would. Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives. In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contracep-tives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage. Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful. As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of Ginsburg, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages . . . on others” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women employed by Hobby Lobby.” Post, at 2.[1] The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing. I A Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990) , which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner, 374 U. S. 398 (1963), and Wisconsin v. Yoder, 406 U. S. 205 (1972) . In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. 374 U. S., at 408–409. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406 U. S., at 210–211, 234–236. In Smith, however, the Court rejected “the balancing test set forth in Sherbert.” 494 U. S., at 883. Smith concerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause. 494 U. S., at 875. This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” 494 U. S., at 888. The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U. S. 507, 514 (1997). Congress responded to Smith by enacting RFRA. “[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U. S. C. §2000bb(a)(2); see also §2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” §2000bb–1(a).[2] If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b).[3] As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work,[4] but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U. S., at 516–517. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id., at 533–534. See also id., at 532. Following our decision in City of Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114Stat. 803, 42 U. S. C. §2000cc et seq. That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. See Cutter v. Wilkinson, 544 U. S. 709 –716 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition of the “exercise of religion.” See §2000bb–2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition made reference to the First Amendment. See §2000bb–2(4) (1994 ed.) (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). And Congress mandated that this concept “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc–3(g).[5] B At issue in these cases are HHS regulations promul-gated under the Patient Protection and Affordable Care Act of 2010 (ACA), 124Stat. 119. ACA generally requires employers with 50 or more full-time employees to offer“a group health plan or group health insurance coverage” that provides “minimum essential coverage.” 26 U. S. C. §5000A(f)(2); §§4980H(a), (c)(2). Any covered employer that does not provide such coverage must pay a substantial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individual.” §§4980D(a)–(b). And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its full-time employees. §§4980H(a), (c)(1). Unless an exception applies, ACA requires an employer’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” 42 U. S. C. §300gg–13(a)(4). Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. Ibid. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require. See 77 Fed. Reg. 8725–8726 (2012). In August 2011, based on the Institute’s recommendations, the HRSA promulgated the Women’s Preventive Services Guidelines. See id., at 8725–8726, and n. 1; online at http://hrsa.gov/womensguidelines (all Internet materials as visited June 26, 2014, and available in Clerk of Court’s case file). The Guidelines provide that nonexempt employers are generally required to provide “coverage, without cost sharing” for “[a]ll Food and Drug Ad-ministration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.” 77 Fed. Reg. 8725 (internal quotation marks omitted). Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. See Brief for HHS in No. 13–354, pp. 9–10, n. 4;[6] FDA, Birth Control: Medicines to Help You.[7] HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.” 45 CFR §147.131(a). That category encompasses “churches, their integrated auxiliaries, and conventions or associ-ations of churches,” as well as “the exclusively religious activities of any religious order.” See ibid (citing 26 U. S. C. §§6033(a)(3)(A)(i), (iii)). In its Guidelines,HRSA exempted these organizations from the requirement to cover contraceptive services. See http://hrsa.gov/womensguidelines. In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as “eligible organizations,” from the contraceptive mandate. See 45 CFR §147.131(b); 78 Fed. Reg. 39874 (2013). An “eligible organization” means a nonprofit organization that “holds itself out as a religious organi-zation” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.” 45 CFR §147.131(b). To qualify for this accommodation, an employer must certify that it is such an organization. §147.131(b)(4). When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. §147.131(c).[8] Al-though this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. 78 Fed. Reg. 39877.[9] In addition to these exemptions for religious organizations, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfathered health plans”—those that existed prior to March 23, 2010, and that have not made specified changes after that date—need not comply with many of the Act’s requirements, including the contraceptive mandate. 42 U. S. C. §§18011(a), (e). And employers with fewer than 50 employees are not required to provide health insurance at all. 26 U. S. C. §4980H(c)(2). All told, the contraceptive mandate “presently does not apply to tens of millions of people.” 723 F. 3d 1114, 1143 (CA10 2013). This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million nonelderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in 2013. Brief for HHS in No. 13–354, at 53; Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits, 2013 Annual Survey 43, 221.[10] The count for employees working for firms that do not have to provide insurance at all because they employ fewer than 50 employees is 34 million workers. See The Whitehouse, Health Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for Small Businesses 1.[11] II A Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages . . . shares humanity with those who conceived it.”[12] Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is organized under Pennsylvania law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO. The Hahns believe that they are required to run their business “in accordance with their religious beliefs and moral principles.” 917 F. Supp. 2d 394, 402 (ED Pa. 2013). To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.” Ibid. (internal quotation marks omitted). The company’s “Vision and Values Statements” affirms that Conestoga endeavors to “ensur[e] a reasonable profit in [a] manner that reflects [the Hahns’] Christian heritage.” App. in No. 13–356, p. 94 (complaint). As explained in Conestoga’s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that “human life begins at conception.” 724 F. 3d 377, 382, and n. 5 (CA3 2013) (internal quotation marks omitted). It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” Ibid. (internal quotation marks omitted). The Hahns have accordingly excluded from the group-health-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifacients. Id., at 382. The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin application of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDA-approved contraceptives that may operate after the fertilization of an egg.[13] These include two forms of emergency contraception commonly called “morning after” pills and two types of intrauterine devices.[14] In opposing the requirement to provide coverage for the contraceptives to which they object, the Hahns argued that “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.” Ibid. The District Court denied a preliminary injunction, see 917 F. Supp. 2d, at 419, and the Third Circuit affirmed in a divided opinion, holding that “for-profit, secular corporations cannot engage in religious exercise” within the meaning of RFRA or the First Amendment. 724 F. 3d, at 381. The Third Circuit also rejected the claims brought by the Hahns themselves because it concluded that the HHS “[m]andate does not impose any requirements on the Hahns” in their personal capacity. Id., at 389. B David and Barbara Green and their three children are Christians who own and operate two family businesses. Forty-five years ago, David Green started an arts-and-crafts store that has grown into a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores, and the company has more than 13,000 employees. 723 F. 3d, at 1122. Hobby Lobby is organized as a for-profit corporation under Oklahoma law. One of David’s sons started an affiliated business, Mardel, which operates 35 Christian bookstores and employs close to 400 people. Ibid. Mardel is also organized as a for-profit corporation under Oklahoma law. Though these two businesses have expanded over the years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies. Ibid. David serves as the CEO of Hobby Lobby, and his three children serve as the president, vice president, and vice CEO. See Brief for Respondents in No. 13–354, p. 8.[15] Hobby Lobby’s statement of purpose commits the Greens to “[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.” App. in No. 13–354, pp. 134–135 (complaint). Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. 723 F. 3d, at 1122. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so. Id., at 1122; App. in No. 13–354, at 136–137. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.” Ibid. (internal quotation marks omitted). Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. 723 F. 3d, at 1122. They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved methods of birth control. Id., at 1125. Although their group-health-insurance plan predates the enactment of ACA, it is not a grandfathered plan because Hobby Lobby elected not to retain grandfathered status before the contraceptive mandate was proposed. Id., at 1124. The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to challenge the contraceptive mandate under RFRA and the Free Exercise Clause.[16] The District Court denied a preliminary injunction, see 870 F. Supp. 2d 1278 (WD Okla. 2012), and the plaintiffs appealed, moving for initial en banc consideration. The Tenth Circuit granted that motion and reversed in a divided opinion. Contrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens’ two for-profit businesses are “persons” within the meaning of RFRA and therefore may bring suit under that law. The court then held that the corporations had established a likelihood of success on their RFRA claim. 723 F. 3d, at 1140–1147. The court concluded that the contraceptive mandate substantially burdened the exercise of religion by requiring the companies to choose between “compromis[ing] their religious beliefs” and paying a heavy fee—either “close to $475 million more in taxes every year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26 million” annually if they “drop[ped] health-insurance benefits for all employees.” Id., at 1141. The court next held that HHS had failed to demonstrate a compelling interest in enforcing the mandate against the Greens’ businesses and, in the alternative, that HHS had failed to prove that enforcement of the mandate was the “least restrictive means” of furthering the Government’s asserted interests. Id., at 1143–1144 (emphasis deleted; internal quotation marks omitted). After concluding that the companies had “demonstrated irreparable harm,” the court reversed and remanded for the District Court to consider the remaining factors of the preliminary-injunction test. Id., at 1147.[17] We granted certiorari. 571 U. S. ___ (2013). III A RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b) (emphasis added). The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga, and Mardel. HHS contends that neither these companies nor their owners can even be heard under RFRA. According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannotbe heard because the regulations, at least as a formal mat-ter, apply only to the companies and not to the ownersas individuals. HHS’s argument would have dramatic consequences. Consider this Court’s decision in Braunfeld v. Brown, 366 U. S. 599 (1961) (plurality opinion). In that case, five Orthodox Jewish merchants who ran small retail businesses in Philadelphia challenged a Pennsylvania Sunday closing law as a violation of the Free Exercise Clause. Because of their faith, these merchants closed their shops on Saturday, and they argued that requiring them to remain shut on Sunday threatened them with financial ruin. The Court entertained their claim (although it ruled against them on the merits), and if a similar claim were raised today under RFRA against a jurisdiction still subject to the Act (for example, the District of Columbia, see 42 U. S. C. §2000bb–2(2)), the merchants would be entitled to be heard. According to HHS, however, if these merchants chose to incorporate their businesses—with-out in any way changing the size or nature of their businesses—they would forfeit all RFRA (and free-exercise) rights. HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations. As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.[18] Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS suggests? An examination of RFRA’s text, to which we turn in the next part of this opinion, reveals that Congress did no such thing. As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statu-tory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies. In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows: “General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F. 3d, at 385 (emphasis added). All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all. B 1 As we noted above, RFRA applies to “a person’s” exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1. Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard. We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the meaning of RFRA. See Brief for HHS in No. 13–354, at 17; Reply Brief in No. 13–354, at 7–8.[19] This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.[20] Cf. Clark v. Martinez, 543 U. S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”). 2 The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the phrase “exercise of religion.” According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion. Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their reli-gious “autonomy . . . often furthers individual religious freedom as well.” Post, at 15 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment)). But this principle appliesequally to for-profit corporations: Furthering their re-ligious freedom also “furthers individual religious freedom.” In these cases, for example, allowing Hobby Lobby, Con-estoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.[21] If the corporate form is not enough, what about the profit-making objective? In Braunfeld, 366 U. S. 599 , we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the “exercise of religion” involves “not only belief and profession but the performance of (or abstention from) physical acts” that are “engaged in for religious reasons.” Smith, 494 U. S., at 877. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition. Thus, a law that “operates so as to make the practice of . . . religious beliefs more expensive” in the context of business activities imposes a burden on the exercise of religion. Braunfeld, supra, at 605; see United States v. Lee, 455 U. S. 252, 257 (1982) (recognizing that “compulsory participation in the social security system interferes with [Amish employers’] free exercise rights”). If, as Braunfeld recognized, a sole proprietorship that seeks to make a profit may assert a free-exercise claim,[22] why can’t Hobby Lobby, Conestoga, and Mardel do the same? Some lower court judges have suggested that RFRA does not protect for-profit corporations because the purpose of such corporations is simply to make money.[23] This argument flies in the face of modern corporate law. “Each American jurisdiction today either expressly or by implication authorizes corporations to be formed under its general corporation act for any lawful purpose or business.” 1 J. Cox & T. Hazen, Treatise of the Law of Corporations §4:1, p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher, Cyclopedia of the Law of Corporations §102 (rev. ed. 2010). While it is certainly true that a central objective of for-profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy-conservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well. HHS would draw a sharp line between nonprofit corporations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave unprotected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals.[24] In fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corporation,” a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners.[25] In any event, the objectives that may properly be pursued by the companies in these cases are governed by the laws of the States in which they were incorporated—Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue “any lawful purpose” or “act,” including the pursuit of profit in conformity with the owners’ religious principles. 15 Pa. Cons. Stat. §1301 (2001) (“Corporations may be incorporated under this subpart for any lawful purpose or purposes”); Okla. Stat., Tit. 18, §§1002, 1005 (West 2012) (“[E]very corporation, whether profit or not for profit” may “be incorporated or organized . . . to conduct or promote any lawful business or purposes”); see also §1006(A)(3); Brief for State of Oklahoma as Amicus Curiae in No. 13–354. 3 HHS and the principal dissent make one additional argument in an effort to show that a for-profit corporation cannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues that RFRA did no more than codify this Court’s pre-Smith Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protection. This argument has many flaws. First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre-Smith interpretation of that Amendment. When first enacted, RFRA defined the “exercise of religion” to mean “the exercise of religion under the First Amendment”—not the exercise of religion as recognized only by then-existing Supreme Court precedents. 42 U. S. C. §2000bb–2(4) (1994 ed.). When Congress wants to link the meaning of a statutory provision to a body of this Court’s case law, it knows how to do so. See, e.g., Antiterrorism and Effective Death Penalty Act of 1996, 28 U. S. C. §2254(d)(1) (authorizing habeas relief from a state-court decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”). Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amendment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the First Amendment, see 42 U. S. C. §2000bb–2(4) (2000 ed.) (incorporating §2000cc–5), and neither HHS nor the principal dissent can explain why Congress did this if it wanted to tie RFRA coverage tightly to the specific holdings of our pre-Smith free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc–3(g). It is simply not possible to read these provisions as restricting the concept of the “exercise of religion” to those practices specifically addressed in our pre-Smith decisions. Third, the one pre-Smith case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 (1961) , the Massachusetts Sunday closing law was challenged by a kosher market that was organized as a for-profit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked “standing” to assert a free-exercise claim,[26] but not one member of the Court expressed agreement with that argument. The plurality opinion for four Justices rejected the First Amendment claim on the merits based on the reasoning in Braunfeld, and reserved decision on the question whether the corporation had “standing” to raise the claim. See 366 U. S., at 631. The three dissenters, Justices Douglas, Brennan, and Stewart, found the law unconstitutional as applied to the corporation and the other challengers and thus implicitly recognized their right to assert a free-exercise claim. See id., at 642 (Brennan, J., joined by Stewart, J., dissenting); McGowan v. Maryland, 366 U. S. 420 –579 (1961) (Douglas, J., dissenting as to related cases including Gallagher). Fi-nally, Justice Frankfurter’s opinion, which was joined by Justice Harlan, upheld the Massachusetts law on the merits but did not question or reserve decision on the issue of the right of the corporation or any of the other challengers to be heard. See McGowan, 366 U. S., at 521–522. It is quite a stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty,left for-profit corporations unprotected simply because in Gallagher—the only pre-Smith case in which the issue was raised—a majority of the Justices did not find it necessary to decide whether the kosher market’s corporate status barred it from raising a free-exercise claim. Finally, the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith? Presumably in recognition of the weakness of this argument, both HHS and the principal dissent fall back on the broader contention that the Nation lacks a tradition of exempting for-profit corporations from generally applicable laws. By contrast, HHS contends, statutes like Title VII, 42 U. S. C. §2000e–19(A), expressly exempt churches and other nonprofit religious institutions but not for-profit corporations. See Brief for HHS in No. 13–356, p. 26. In making this argument, however, HHS did not call to our attention the fact that some federal statutes do exempt categories of entities that include for-profit corporations from laws that would otherwise require these entities to engage in activities to which they object on grounds of conscience. See, e.g., 42 U. S. C. §300a–7(b)(2); §238n(a).[27] If Title VII and similar laws show anything, it isthat Congress speaks with specificity when it intends a religious accommodation not to extend to for-profitcorporations. 4 Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 13–356, at 30. These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.[28] HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. On the contrary, the scope of RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category that consists primarily of prisoners, and by the time of RLUIPA’s enactment, the propensity of some prisoners to assert claims of dubious sincerity was well documented.[29] Nevertheless, after our decision in City of Boerne, Congress enacted RLUIPA to preserve the right of prisoners to raise religious liberty claims. If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Congress limited RFRA’s reach out of concern for the seem-ingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wanted RFRA to apply to nonprofit corporations, see, Reply Brief in No. 13–354, at 7–8, what reason is there to think that Congress believed that spotting insincere claims wouldbe tougher in cases involving for-profits? HHS and the principal dissent express concern about the possibility of disputes among the owners of corporations, but that is not a problem that arises because of RFRA or that is unique to this context. The owners of closely held corporations may—and sometimes do—disagree about the conduct of business. 1 Treatise of the Law of Corporations §14:11. And even if RFRA did not exist, the owners of a company might well have a dispute relating to religion. For example, some might want a company’s stores to remain open on the Sabbath in order to make more money, and others might want the stores to close for religious reasons. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. See, e.g., ibid; id., §3:2; Del. Code Ann., Tit. 8, §351 (2011) (providing that certificate of incorporation may provide how “the business of the corporation shall be managed”). Courts will turn to that structure and the underlying state law in resolving disputes. For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.[30] IV Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. 42 U. S. C. §2000bb–1(a). We have little trouble concluding that it does. A As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs. If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual. 26 U. S. C. §4980D. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial. It is true that the plaintiffs could avoid these assessments by dropping insurance coverage altogether and thus forcing their employees to obtain health insurance on one of the exchanges established under ACA. But if at least one of their full-time employees were to qualify for a subsidy on one of the government-run exchanges, this course would also entail substantial economic consequences. The companies could face penalties of $2,000 per employee each year. §4980H. These penalties would amount to roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. B Although these totals are high, amici supporting HHS have suggested that the $2,000 per-employee penalty is actually less than the average cost of providing health insurance, see Brief for Religious Organizations 22, and therefore, they claim, the companies could readily eliminate any substantial burden by forcing their employees to obtain insurance in the government exchanges. We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, see United Parcel Service, Inc. v. Mitchell, 451 U. S. 56 , n. 2 (1981); Bell v. Wolfish, 441 U. S. 520 , n. 13 (1979); Knetsch v. United States, 364 U. S. 361, 370 (1960) , and there are strong reasons to adhere to that practice in these cases. HHS, which presumably could have compiled the relevant statistics, has never made this argument—not in its voluminous briefing or at oral argument in this Court nor, to our knowledge, in any of the numerous cases in which the issue now before us has been litigated around the country. As things now stand, we do not even know what the Government’s position might be with respect to these amici’s intensely empirical argument.[31] For this same reason, the plaintiffs have never had an opportunity to respond to this novel claim that—contrary to their longstanding practice and that of most large employers—they would be better off discarding their employer insurance plans altogether. Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies have religious reasons for providing health-insurance coverage for their employees. Before the advent of ACA, they were not legally compelled to provide insurance, but they nevertheless did so—in part, no doubt, for conventional business reasons, but also in part because their religious beliefs govern their relations with their employees. See App. to Pet. for Cert. in No. 13–356, p. 11g; App. in No. 13–354, at 139. Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty. Health insurance is a benefit that employees value. If the companies simply eliminated that benefit and forced employees to purchase their own insurance on the exchanges, without offering additional compensation, it is predictable that the companies would face a competitive disadvantage in retaining and attracting skilled workers. See App. in No. 13–354, at 153. The companies could attempt to make up for the elimination of a group health plan by increasing wages, but this would be costly. Group health insurance is generally less expensive than comparable individual coverage, so the amount of the salary increase needed to fully compensate for the termination of insurance coverage may well exceed the cost to the companies of providing the insurance. In addition, any salary increase would have to take into account the fact that employees must pay income taxes on wages but not on the value of employer-provided health insurance. 26 U. S. C. §106(a). Likewise, employers can deduct the cost of providing health insurance, see §162(a)(1), but apparently cannot deduct the amount of the penalty that they must pay if insurance is not pro-vided; that difference also must be taken into account. Given these economic incentives, it is far from clear that it would be financially advantageous for an employer to drop coverage and pay the penalty.[32] In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the Government—that dropping insurance coverage eliminates the substantial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans. C In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated. Brief for HHS in 13–354, pp. 31–34; post, at 22–23. HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue.[33] Ibid. This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.[34] Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. See, e.g., Smith, 494 U. S., at 887 (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim”); Hernandez v. Commissioner, 490 U. S. 680, 699 (1989) ; Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 450 (1969) . Moreover, in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981) , we considered and rejected an argument that is nearly identical to the one now urged by HHS and the dissent. In Thomas, a Jehovah’s Witness was initially employed making sheet steel for a variety of industrial uses, but he was later transferred to a job making turrets for tanks. Id., at 710. Because he objected on religious grounds to participating in the manufacture of weapons, he lost his job and sought unemployment compensation. Ruling against the em-ployee, the state court had difficulty with the line thatthe employee drew between work that he found to be con-sistent with his religious beliefs (helping to manufacture steel that was used in making weapons) and work that he found morally objectionable (helping to make the weapons themselves). This Court, however, held that “it is not for us to say that the line he drew was an unreasonable one.” Id., at 715.[35] Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function . . . in this context is to determine” whether the line drawn reflects “an honest conviction,” id., at 716, and there is no dispute that it does. HHS nevertheless compares these cases to decisions in which we rejected the argument that the use of general tax revenue to subsidize the secular activities of religious institutions violated the Free Exercise Clause. See Tilton v. Richardson, 403 U. S. 672, 689 (1971) (plurality); Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 –249 (1968). But in those cases, while the subsidies were clearly contrary to the challengers’ views on a secular issue, namely, proper church-state relations, the challengers never articulated a religious objection to the subsidies. As we put it in Tilton, they were “unable to identify any coercion directed at the practice or exercise of their religious beliefs.” 403 U. S., at 689 (plurality opinion); see Allen, supra, at 249 (“[A]ppellants have not contended that the New York law in any way coerces them as individuals in the practice of their religion”). Here, in contrast, the plaintiffs do assert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity. Because the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs. V Since the HHS contraceptive mandate imposes a substantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §2000bb–1(b). A HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” Brief for HHS in No. 13–354, at 46, 49. RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O’Centro, 546 U. S., at 430–431 (quoting §2000bb–1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro, supra, at 431. In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing. See Brief for HHS in No. 13–354, at 14–15, 49; see Brief for HHS in No. 13–356, at 10, 48. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, 381 U. S. 479 –486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13–354, at 50 (internal quotation marks omitted). The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view. As we have noted, many employees—those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have no contraceptive coverage without cost sharing at all. HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be outweighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly significant protections.” 75 Fed. Reg. 34540 (2010). But the contraceptive mandate is expressly excluded from this subset. Ibid. We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b)(2). B The least-restrictive-means standard is exceptionally demanding, see City of Boerne, 521 U. S., at 532, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. See §§2000bb–1(a), (b) (requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest” (emphasis added)). The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access tothese contraceptives, two of which, according to the FDA, are designed primarily for emergency use. See Birth Control: Medicines to Help You, online at http://www.fda.gov/forconsumers/byaudience/forwomen/freepublications/ucm313215.htm. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance-coverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. See CBO, Updated Estimates of the Effects of the Insurance Coverage Provisions of the Affordable Care Act, April 2014, p. 2.[36] If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used to require creation of entirely new programs.” Brief for HHS in 13–354, at 15.[37] But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: “[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law. In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See supra, at 9–10, and nn. 8–9. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1); 26 CFR §§54.9815–2713A(a)(4), (b). If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR §54.9815–2713A(c)(2).[38] We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.[39] At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.[40] The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.[41] Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal logistical and administrative obstacles,” post, at 28 (internal quotation marks omitted), because their employers’ insurers would be responsible for providing information and coverage, see, e.g., 45 CFR §§147.131(c)–(d); cf. 26 CFR §§54.9815–2713A(b), (d). Ironically, it is the dissent’s approach that would “[i]mped[e] women’s receipt of benefits by ‘requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit,’ ” post, at 28, because the dissent would effectively compel religious employers to drop health-insurance coverage altogether, leaving their employees to find individual plans on government-run exchanges or elsewhere. This is indeed “scarcely what Congress contemplated.” Ibid. C HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction.[42] HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate. It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome. In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them. The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. HHS also raises for the first time in this Court the argument that applying the contraceptive mandate to for-profit employers with sincere religious objections is essential to the comprehensive health-insurance scheme that ACA establishes. HHS analogizes the contraceptive mandate to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer, but these cases are quite different. Our holding in Lee turned primarily on the special problems associated with a national system of taxation. We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” 455 U. S., at 260. Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” Ibid. We observed that “[t]he tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.” Ibid.; see O Centro, 546 U. S., at 435. Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of government expenditures funded by tax dollars, allowing tax-payers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizingexemptions from the contraceptive mandate is very different. ACA does not create a large national pool of tax revenue for use in purchasing healthcare coverage. Rather, individual employers like the plaintiffs purchase insurance for their own employees. And contrary to the principal dissent’s characterization, the employers’ contributions do not necessarily funnel into “undifferentiated funds.” Post, at 23. The accommodation established by HHS requires issuers to have a mechanism by which to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 45 CFR §147.131(c)(2)(ii). Recognizing a religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of ACA’s comprehensive scheme in the way that recognizing religious objections to particular expenditures from general tax revenues would.[43] In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. See post, at 32–35. In making this plea, the dissent reiterates a point made forcefully by the Court in Smith. 494 U. S., at 888–889 (applying the Sherbert test to all free-exercise claims “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind”). But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test forstriking sensible balances between religious liberty and competing prior governmental interests.” 42 U. S. C. §2000bb(a)(5). The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful. * * * The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns. The judgment of the Tenth Circuit in No. 13–354 is affirmed; the judgment of the Third Circuit in No. 13–356 is reversed, and that case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 See also , at 8 (“The exemption sought by Hobby Lobby and Conestoga . . . would deny [their employees] access to contraceptive coverage that the ACA would otherwise secure”) 2 The Act defines “government” to include any “department” or“agency” of the United States. §2000bb–2(1). 3 In v. , 521 U. S., 507 (1997), we wrote that RFRA’s “least restrictive means requirement was not used in the pre-jurisprudence RFRA purported to codify.” , at 509. On this understanding of our pre- cases, RFRA did more than merely restore the balancing test used in the line of cases; it provided even broader protection for religious liberty than was available under those decisions. 4 See, , v., 441 F. 3d 96, 108 (CA2 2006); v., 290 F. 3d 1210, 1220 (CA9 2002). 5 The principal dissent appears to contend that this rule of construction should apply only when defining the “exercise of religion” in an RLUIPA case, but not in a RFRA case. See , at 11, n. 10. That argument is plainly wrong. Under this rule of construction, the phrase “exercise of religion,” as it appears in RLUIPA, must be interpreted broadly, and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” –2(4). It necessarily follows that the “exercise of religion” under RFRA must be given the same broad meaning that applies under RLUIPA. 6 We will use “Brief for HHS” to refer to the Brief for Petitioners in No. 13–354 and the Brief for Respondents in No. 13–356. The federal parties are the Departments of HHS, Treasury, and Labor, and the Secretaries of those Departments. 7 Online at http://www.fda.gov/forconsumers/byaudience/forwomen/freepublications/ucm313215.htm. The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, see, ., 62 Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify them. 8 In the case of self-insured religious organizations entitled to the accommodation, the third-party administrator of the organization must “provide or arrange payments for contraceptive services” for the organization’s employees without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815–2713A(b)(2)). The regulations establish a mechanism for these third-party administrators to be compensated for their expenses by obtaining a reduction in the fee paid by insurers to participate in the federally facilitated exchanges. See 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815–2713A (b)(3)). HHS believes that these fee reductions will not materially affect funding of the exchanges because “payments for contraceptive services will represent only a small portion of total [exchange] user fees.” 78 Fed. Reg. 39882. 9 In a separate challenge to this framework for religious nonprofit organizations, the Court recently ordered that, pending appeal, the eligible organizations be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators. See v. , 571 U. S. ___ (2014). 10 While the Government predicts that this number will decline over time, the total number of Americans working for employers to whom the contraceptive mandate does not apply is still substantial, and there is no legal requirement that grandfathered plans ever be phased out. 11 Online at http : / / www . whitehouse . gov / files / documents / health _reform_for_small_businesses.pdf. 12 Mennonite Church USA, Statement on Abortion, online athttp://www.mennoniteusa.org /resource-center/resources /statements -and-resolutions/statement-on-abortion/. 13 The Hahns and Conestoga also claimed that the contraceptive mandate violates the and the Administrative Procedure Act, , but those claims are not before us. 14 See, , WebMD Health News, New Morning-After Pill Ella Wins FDA Approval, online at http://www.webmd.com/sex/birth-control/news/20100813/new-morning-after-pill-ella-wins-fda-approval. 15 The Greens operate Hobby Lobby and Mardel through a management trust, of which each member of the family serves as trustee. 723 F. 3d 1114, 1122 (CA10 2013). The family provided that the trust would also be governed according to their religious principles. 16 They also raised a claim under the Administrative Procedure Act, . 17 Given its RFRA ruling, the court declined to address the plaintiffs’ free-exercise claim or the question whether the Greens could bring RFRA claims as individual owners of Hobby Lobby and Mardel. Four judges, however, concluded that the Greens could do so, see 723 F. 3d, at 1156 (Gorsuch, J., concurring); , at 1184 (Matheson, J., concurring in part and dissenting in part), and three of those judges would have granted plaintiffs a preliminary injunction, see , at 1156 (Gorsuch, J., concurring). 18 As discussed, n. 3, , in we stated that RFRA, by imposing a least-restrictive-means test, went beyond what was required by our pre-decisions. Although the author of the principal dissent joined the Court’s opinion in , she now claims that the statement was incorrect. , at 12. For present purposes, it is unnecessary to adjudicate this dispute. Even if RFRA simply restored the status quo ante, there is no reason to believe, as HHS and the dissent seem to suggest, that the law was meant to be limited to situations that fall squarely within the holdings of pre- cases. See , at 25–28. 19 Cf. Brief for Federal Petitioners in , O. T. 2004, No. 04–1084, p. II (stating that the organizational respondent was “a New Mexico Corporation”); Brief for Federal Respondent in , O. T. 2011, No. 10–553, p. 3 (stating that the petitioner was an “ecclesiastical corporation”). 20 Not only does the Government concede that the term “persons” in RFRA includes nonprofit corporations, it goes further and appears to concede that the term might also encompass other artificial entities, namely, general partnerships and unincorporated associations. See Brief for HHS in No. 13–354, at 28, 40. 21 Although the principal dissent seems to think that Justice Brennan’s statement in provides a ground for holding that for-profit corporations may not assert free-exercise claims, that was not Justice Brennan’s view. See v., (dissenting opinion); , at 26–27. 22 It is revealing that the principal dissent cannot even bring itself to acknowledge that was correct in entertaining the merchants’ claims. See at 19 (dismissing the relevance of in part because “[t]he free exercise claim asserted there was promptly rejected on the merits”). 23 See, ., 724 F. 3d, at 385 (“We do not see how a for-profit, ‘artificial being,’ . . . that was created to make money” could exercise religion); v., 708 F. 3d 850, 857 (CA7 2013) (Rovner, J. dissenting) (“So far as it appears, the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere”); v., 730 F. 3d 618, 626 (CA7 2013) (“Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as ‘persons’ under RFRA”); see also 723 F. 3d, at 1171–1172 (Briscoe, C. J., dissenting) (“[T]he specific purpose for which [a corporation] is created matters greatly to how it will be categorized and treated under the law” and “it is undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers”). 24 See, , M. Sanders, Joint Ventures Involving Tax-Exempt Organizations 555 (4th ed. 2013) (describing Google.org, which “advance[s] its charitable goals” while operating as a for-profit corporation to be able to “invest in for-profit endeavors, lobby for policies that support its philanthropic goals, and tap Google’s innovative technology and workforce” (internal quotation marks and alterations omitted)); cf. 26 CFR §1.501(c)(3)–1(c)(3). 25 See Benefit Corp Information Center, online at http://www.benefitcorp.net/state-by-state-legislative-status; , Va. Code Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (“A benefit corporation shall have as one of its purposes the purpose of creating a general public benefit,” and “may identify one or more specific public benefits that it is the purpose of the benefit corporation to create. . . . This purpose is in addition to [the purpose of engaging in any lawful business].” “ ‘Specific public benefit’ means a benefit that serves one or more public welfare, religious, charitable, scientific, literary, or educational purposes, or other purpose or benefit beyond the strict interest of the shareholders of the benefit corporation . . . .”); S. C. Code Ann. §§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012 Cum. Supp.) (similar). 26 See Brief for Appellants in , O. T. 1960 No. 11, pp. 16, 28–31 (arguing that corporation “has no ‘religious belief’ or ‘religious liberty,’ and had no standing in court to assert that its free exercise of religion was impaired”). 27 The principal dissent points out that “the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage.” , at 16, n. 15. The dissent takes this to mean that RFRA did not, in fact, “ope[n] all statutory schemes to religion-based challenges by for-profit corporations” because if it had “there would be no need for a statute-specific, post-RFRA exemption of this sort.” . 28 To qualify for RFRA’s protection, an asserted belief must be “sincere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail. Cf., ., v. , 608 F. 3d 717, 718–719 (CA10 2010). 29 See, , v. , 90 F. 3d 293, 296 (CA8 1996); v., 525 F. Supp. 81, 83–84 (ED Mo. 1981);v. , 1996 WL 5320, *5 (CA9, Jan. 5, 1996);v., 549 N. W. 2d 819–820 (Iowa 1996). 30 The principal dissent attaches significance to the fact that the “Senate voted down [a] so-called ‘conscience amendment,’ which would have enabled any employer or insurance provider to deny coverage based on its asserted religious beliefs or moral convictions.” , at 6. The dissent would evidently glean from that vote an intent by the Senate to prohibit for-profit corporate employers from refusing to offer contraceptive coverage for religious reasons, regardless of whether the contraceptive mandate could pass muster under RFRA’s standards. But that is not the only plausible inference from the failed amendment—or even the most likely. For one thing, the text of the amendment was “written so broadly that it would allow any employer to deny any health service to any American for virtually any reason—.” 158 Cong. Rec. S1165 (Mar. 1, 2012) (emphasis added). Moreover, the amendment would have authorized a blanket exemption for religious or moral objectors; it would not have subjected religious-based objections to the judicial scrutiny called for by RFRA, in which a court must consider not only the burden of a requirement on religious adherents, but also the government’s interest and how narrowly tailored the requirement is. It is thus perfectly reasonable to believe that the amendment was voted down because it extended more broadly than the pre-existing protections of RFRA. And in any event, even if a rejected amendment to a bill could be relevant in other contexts, it surely cannot be relevant here, because any “Federal statutory law adopted after November 16, 1993 is subject to [RFRA] unless such law such application by reference to [RFRA].” –3(b) (emphasis added). It is not plausible to find such an explicit reference in the meager legislative history on which the dissent relies. 31 Indeed, one of HHS’s stated reasons for establishing the religious accommodation was to “encourag[e] eligible organizations to to offer health coverage.” 78 Fed. Reg. 39882 (2013) (emphasis added). 32 Attempting to compensate for dropped insurance by raising wages would also present administrative difficulties. In order to provide full compensation for employees, the companies would have to calculate the value to employees of the convenience of retaining their employer-provided coverage and thus being spared the task of attempting to find and sign up for a comparable plan on an exchange. And because some but not all of the companies’ employees may qualify for subsidies on an exchange, it would be nearly impossible to calculate a salary increase that would accurately restore the status quo ante for all employees. 33 This argument is not easy to square with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers, such as churches, that have the very same religious objections as the Hahns and Greens and their companies. The connection between what these religious employers would be required to do if not exempted (provide insurance coverage for particular contraceptives) and the ultimate event that they find morally wrong (destruction of an embryo) is exactly the same. Nevertheless, as discussed, HHS and the Labor and Treasury Departments authorized the exemption from the contraceptive mandate of group health plans of certain religious employers, and later expanded the exemption to include certain nonprofit organizations with religious objections to contraceptive coverage. 78 Fed. Reg. 39871. When this was done, the Government made clear that its objective was to “protec[t]” these religious objectors “from having to contract, arrange, pay, or refer for such coverage.” . Those exemptions would be hard to understand if the plaintiffs’ objections here were not substantial. 34 See, ., Oderberg, The Ethics of Co-operation in Wrongdoing, in Modern Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins, Man as Man: The Science and Art of Ethics 353, 355 (1949) (“The general principles governing cooperation” in wrongdoing—., “physical activity (or its omission) by which a person assists in the evil act of another who is the principal agent”—“present troublesome difficulties in application”); 1 H. Davis, Moral and Pastoral Theology 341 (1935) (Cooperation occurs “when A helps B to accomplish an external act by an act that is not sinful, and without approving of what B does”). 35 The principal dissent makes no effort to reconcile its view about the substantial-burden requirement with our decision in . 36 Online at http://cbo.gov/publication/45231. 37 In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals. It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” v., (applying RLUIPA). That consideration will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest. But it could not reasonably be maintained that any burden on religious exercise, no matter how onerous and no matter how readily the government interest could be achieved through alternative means, is permissible under RFRA so long as the relevant legal obligation requires the religious adherent to confer a benefit on third parties. Otherwise, for example, the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owning restaurants). By framing any Government regulation as benefiting a third party, the Government could turn all regulations into entitlements to which nobody could object on religious grounds, rendering RFRA meaningless. In any event, our decision in these cases need not result in any detrimental effect on any third party. As we explain, see , at 43–44, the Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees who are unable to obtain them under their health-insurance plans due to their employers’ religious objections. 38 HHS has concluded that insurers that insure eligible employers opting out of the contraceptive mandate and that are required to pay for contraceptive coverage under the accommodation will not experience an increase in costs because the “costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. 39877. With respect to self-insured plans, the regulations establish a mechanism for the eligible employers’ third-party administrators to obtain a compensating reduction in the fee paid by insurers to participate in the federally facilitated exchanges. HHS believes that this system will not have a material effect on the funding of the exchanges because the “payments for contraceptive services will represent only a small portion of total [federally facilitated exchange] user fees.” at 39882; see 26 CFR §54.9815–2713A(b)(3). 39 See n. 9, . 40 The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. , at 30.The less re-strictive approach we describe accommodates the religious beliefs as-serted in these cases, and that is the only question we are permittedto address. 41 In the principal dissent’s view, the Government has not had a fair opportunity to address this accommodation, , at 30. n. 27, but the Government itself apparently believes that when it “provides an exception to a general rule for secular reasons (or for only certain religious reasons), [it] must explain why extending a comparable exception to a specific plaintiff for religious reasons would undermine its compelling interests.” Brief for the United States as in v., No. 13–6827, p. 10, now pending before the Court. 42 Cf. 42 U. S. C. §1396s (Federal “program for distribution of pediatric vaccines” for some uninsured and underinsured children). 43 HHS highlights certain statements in the opinion in that it regards as supporting its position in these cases. In particular, HHS notes the statement that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” 455 U. S., at 261. was a free exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, is squarely inconsistent with the plain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, the Government does not have a free hand in imposing obligations that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict RFRA test is met.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. v. HOBBY LOBBY STORES, INC., et al. certiorari to the united states court of appeals for the tenth circuit No. 13–354. Argued March 25, 2014—Decided June 30, 2014[1] The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). At issue here are regulations promulgated by the Department of Health and Human Services (HHS) under the Patient Protection and Affordable Care Act of 2010 (ACA), which, as relevant here, requires specified employers’ group health plans to furnish “preventive care and screenings” for women without “any cost sharing requirements,” 42 U. S. C. §300gg–13(a)(4). Congress did not specify what types of preventive care must be covered; it authorized the Health Resources and Services Administration, a component of HHS, to decide. Ibid. Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Administration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any cost-sharing requirements on the employer, its insurance plan, or its employee beneficiaries. In these cases, the owners of three closely held for-profit corporations have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions, they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide health coverage for the four objectionable contraceptives. In No. 13–356, the District Court denied the Hahns and their company—Conestoga Wood Specialties—a preliminary injunction. Affirming, the Third Circuit held that a for-profit corporation could not “engage in religious exercise” under RFRA or the First Amendment, and that the mandate imposed no requirements on the Hahns in their personal capacity. In No. 13–354, the Greens, their children, and their companies—Hobby Lobby Stores and Mardel—were also denied a preliminary injunction, but the Tenth Circuit reversed. It held that the Greens’ businesses are “persons” under RFRA, and that the corporations had established a likelihood of success on their RFRA claim because the contraceptive mandate substantially burdened their exercise of religion and HHS had not demonstrated a compelling interest in enforcing the mandate against them; in the alternative, the court held that HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling governmental interest. Held: As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA. . (a) RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, Hobby Lobby, and Mardel. . (1) HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as corporations. RFRA’s text shows that Congress designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,” but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them. . (2) HHS and the dissent make several unpersuasive arguments. . (i) Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of “person,” which “include[s] corporations, . . . as well as individuals.” 1 U. S. C. §1. The Court has entertained RFRA and free-exercise claims brought by nonprofit corporations. See, e.g., Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U.S. 418. And HHS’s concession that a nonprofit corporation can be a “person” under RFRA effectively dispatches any argument that the term does not reach for-profit corporations; no conceivable definition of “person” includes natural persons and nonprofit corporations, but not for-profit corporations. . (ii) HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby, and Mardel because they cannot “exercise . . . religion.” They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofit corporations. And the profit-making objective of the corporations cannot explain it because the Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown, 366 U.S. 599. Business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understanding of the “exercise of religion” that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 877. Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners’ religious principles. . (iii) Also flawed is the claim that RFRA offers no protection because it only codified pre-Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit corporations. First, nothing in RFRA as originally enacted suggested that its definition of “exercise of religion” was meant to be tied to pre-Smith interpretations of the First Amendment. Second, if RFRA’s original text were not clear enough, the RLUIPA amendment surely dispels any doubt that Congress intended to separate the definition of the phrase from that in First Amendment case law. Third, the pre-Smith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U.S. 617, suggests, if anything, that for-profit corporations can exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide very broad protection for religious liberty, merely restored this Court’s pre-Smith decisions in ossified form and restricted RFRA claims to plaintiffs who fell within a category of plaintiffs whose claims the Court had recognized before Smith. . (3) Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because of the difficulty of ascertaining the “beliefs” of large, publicly traded corporations, but HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. That disputes among the owners of corporations might arise is not a problem unique to this context. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. Courts will turn to that structure and the underlying state law in resolving disputes. . (b) HHS’s contraceptive mandate substantially burdens the exercise of religion. . (1) It requires the Hahns and Greens to engage in conduct that seriously violates their sincere religious belief that life begins at conception. If they and their companies refuse to provide contraceptive coverage, they face severe economic consequences: about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel. And if they drop coverage altogether, they could face penalties of roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. P. 32. (2) Amici supporting HHS argue that the $2,000 per-employee penalty is less than the average cost of providing insurance, and therefore that dropping insurance coverage eliminates any substantial burden imposed by the mandate. HHS has never argued this and the Court does not know its position with respect to the argument. But even if the Court reached the argument, it would find it unpersuasive: It ignores the fact that the plaintiffs have religious reasons for providing health-insurance coverage for their employees, and it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty. . (3) HHS argues that the connection between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the employee who will choose the coverage and contraceptive method she uses. But RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs. The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707. The Court’s “narrow function . . . is to determine” whether the plaintiffs’ asserted religious belief reflects “an honest conviction,” id., at 716, and there is no dispute here that it does. Tilton v. Richardson, 403 U.S. 672, 689; and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 248–249, distinguished. . (c) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest. . (1) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA. . (2) The Government has failed to satisfy RFRA’s least-restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests. . (3) This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice. United States v. Lee, 455 U.S. 252, which upheld the payment of Social Security taxes despite an employer’s religious objection, is not analogous. It turned primarily on the special problems associated with a national system of taxation; and if Lee were a RFRA case, the fundamental point would still be that there is no less restrictive alternative to the categorical requirement to pay taxes. Here, there is an alternative to the contraceptive mandate. . No. 13–354, 723 F.3d 1114, affirmed; No. 13–356, 724 F.3d 377, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a concurring opinion. Ginsburg, J., filed a dissenting opinion, in which Sotomayor, J., joined, and in which Breyer and Kagan, JJ., joined as to all but Part III–C–1. Breyer and Kagan, JJ., filed a dissenting opinion. Notes 1 Together with No. 13–356, Conestoga Wood Specialties Corp. et al. v. Burwell, Secretary of Health and Human Services, et al., on certiorari to the United States Court of Appeals for the Third Circuit.

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling governmental interest. The plain terms of the Act make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs. . (a) The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S. C. §2000bb(a)(5), imposes a substantial burden on religious exercise, and requires that the Government demonstrate that its application of the burden to the person is in furtherance of a compelling government interest, and that, in any event, such application does not violate the Free Exercise Clause of the First Amendment. Cf. City of Boerne v. Flores, 521 U. S. 507,; Yoder v. Wisconsin Dept. of Human Resources, 394 F.2d 814; Williams v. United States,, and Yoder, supra. In No. 13–354, the owners of two family businesses (Hobby Lobby, Conestoga, and Mardel) in Pennsylvania organized themselves as corporations, and each family member signed a pledge to run the businesses in accordance with the family's religious beliefs and to use the family assets to support Christian ministries. Petitioner Health Resources and Services Administration (HHS), a component of HHS, promulgated the Women's Preventive Services Guidelines, which provide that nonexempt employers are generally required to provide contraceptive coverage for FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling, and specifically object to the same four contraceptive methods as the Hahns and Greens. HHS also authorized HHS to establish exemptions from the contraceptive mandate for grandfathered plans, and HHS has provided no reason why the same system cannot be made available to religious nonprofit corporations that have religious objections to the mandate. Respondents, including petitioners, brought suit against HHS and other federal agencies and officials in Federal District Court to challenge the mandate, claiming that enforcement of the mandate against the objecting parties was unlawful. The District Court denied a preliminary injunction, and the Court of Appeals affirmed. Held: The contraceptive mandate is unlawful. (1) The regulations imposing the burden of providing health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the owners cannot be enforced under the standard that the Act prescribes. (2) HHS has not shown that the requirement that the cost of providing the contraceptives at issue to any women who are unable to obtain them under their health insurance policies due to their employers' religious objections violates their beliefs. (3) The fact that the plaintiffs and petitioners cannot sue because they seek to make a profit for their owners is irrelevant, since the regulations, at least as a formal mat-ter, apply only to the companies and not to the ownersas individuals. (4) There are other ways in which Congress or HHS could ensure that every woman has cost-free access to the particular contraceptives in question, while ensuring that the employees of these corporations have precisely the same access to all contraceptives without cost sharing. (5) The Act defines "government" to include any "department" or agency of the United States. (6) HHS concedes that a nonprofit corporation can be a "person" within the meaning of the term, and concedes that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious belief. (7) HHS does not claim that the religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of the comprehensive scheme in the way that recognizing religious objections of particular expenditures from general tax revenues would. (8) The one pre-Smith case involving the free-exercise rights of a corporation suggests, if anything, that such corporations possess such rights.. No. 13-354, 873, 917 F. Supp. 2d 1114, affirmed; No.13–356, 573, 723 F. 2l, reversed and remanded. 724 F. 3d 1147, affirmed in part and reversed in part. REHNQUIST, C.J., wrote the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, O'CONNOR, and SCALIA, JJ., joined, and in Parts I, II, III, and IV of which BRENNAN, MARSHALL, and KENNEDY, joined. WHITE, J., filed an opinion concurring in the judgment, post, p.. O'GLON, J. filed a dissenting opinion, in Part II of which BURGER, CJ., and POWELL, J, joined in part, and post, at.

2013_12-79

https://www.oyez.org/cases/2013/12-79

. The Securities Litigation Uniform Standards Act of 1998 (which we shall refer to as the “Litigation Act”) for-bids the bringing of large securities class actions based upon violations of state law. It says that plaintiffs may not maintain a class action “based upon the statutory or common law of any State” in which the plaintiffs allege “a misrepresentation or omission of a material fact in con-nection with the purchase or sale of a covered security.” 15 U. S. C. §78bb(f)(1) (emphasis added). The Act defines “class actions” as those involving more than 50 members. See §78bb(f )(5). It defines “covered security” narrowly to include only securities traded on a national exchange (or, here irrelevant, those issued by investment companies). §§78bb(f )(5)(E), 77r(b)(1)–(2). The question before us is whether the Litigation Act encompasses a class action in which the plaintiffs allege (1) that they “purchase[d]” uncovered securities (certificates of deposit that are not traded on any national exchange), but (2) that the defendants falsely told the victims that the uncovered securities were backed by covered securities. We note that the plaintiffs do not allege that the defendants’ misrepresentations led anyone to buy or to sell (or to maintain positions in) covered securities. Under these circumstances, we conclude the Act does not apply. In light of the dissent’s characterization of our holding, post, at 11–12 (opinion of Kennedy, j.)—which we believe is incorrect—we specify at the outset that this holding does not limit the Federal Government’s authority to prosecute “frauds like the one here.” Post, at 11. The Federal Government has in fact brought successful prosecutions against the fraudsters at the heart of this litigation, see infra, at 5–6, and we fail to understand thedissent’s repeated suggestions to the contrary, post, at 3, 4,11, 12, 17. Rather, as we shall explain, we believe the basic consequence of our holding is that, without limiting the Federal Government’s prosecution power in any sig-nificant way, it will permit victims of this (and similar) frauds to recover damages under state law. See infra, at 15–17. Under the dissent’s approach, they would have no such ability. I A The relevant statutory framework has four parts: (1) Section 10(b) of the underlying regulatory statute, the Securities Exchange Act of 1934. 48Stat. 891, as amended, 15 U. S. C. §78j (2012 ed.). This well-known statutory provision forbids the “use” or “employ[ment]” of “any manipulative or deceptive device or contrivance” “in connection with the purchase or sale of any security.” §78j(b). Securities and Exchange Commission Rule 10b–5 similarly forbids the use of any “device, scheme, or artifice to defraud” (including the making of “any untrue statement of a material fact” or any similar “omi[ssion]”) “in connection with the purchase or sale of any security.” 17 CFR §240.10b–5 (2013). For purposes of these provisions, the Securities Exchange Act defines “security” broadly to include not just things traded on national exchanges, but also “any note, stock, treasury stock, security future, security-based swap, bond, debenture . . . [or] certificate of deposit for a security.” 15 U. S. C. §78c(a)(10). See also §§77b(a)(1), 80a–2(a)(36), 80b–2(a)(18) (providing virtually identical defini-tions of “security” for the Securities Act of 1933, the Investment Company Act of 1940, and the InvestmentAdvisers Act of 1940). (2) A statute-based private right of action. The Court has read §10(b) and Rule 10b–5 as providing injured persons with a private right of action to sue for damages suffered through those provisions’ violation. See, e.g., Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 730 (1975) . The scope of the private right of action is more limited than the scope of the statutes upon which it is based. See Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148, 153, 155, 166 (2008) (private right does not cover suits against “secondary actors” who had no “role in preparing or disseminating” a stock issuer’s fraudulent “financial statements”); Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164 (1994) (private right does not extend to actions against “aiders and abettors” of securities fraud); Blue Chip Stamps, supra, at 737 (private right extends only to purchasers and sellers, not to holders, of securities). (3) The Private Securities Litigation Reform Act of 1995 (PSLRA). 109Stat. 737, 15 U. S. C. §§77z–1, 78u–4. This law imposes procedural and substantive limitations upon the scope of the private right of action available under §10(b) and Rule 10b–5. It requires plaintiffs to meet heightened pleading standards. It permits defendants to obtain automatic stays of discovery. It limits recoverable damages and attorney’s fees. And it creates a new “safe harbor” for forward-looking statements. See §§78u–4, 78u–5. (4) The Securities Litigation Uniform Standards Act. 112Stat. 3227, 15 U. S. C. §78bb(f )(1)(A). As we said at the outset, this 1998 law forbids any “covered class action based upon the statutory or common law of any State . . . by any private partyalleging— “(A) a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security; or “(B) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security.” §§78bb(f )(1)(A)–(B). The law defines “covered security” narrowly. It is a security that “satisfies the standards for a covered security specified in paragraph (1) or (2) of section 18(b) of the Securities Act of 1933.” §78bb(f )(5)(E). And the relevant paragraphs of §18(b) of the 1933 Act define a “covered security” as “[a security] listed, or authorized for listing, on a national securities exchange,” §77r(b)(1) (or, though not relevant here, as a security issued by an “investment company,” §77r(b)(2)). The Litigation Act also specifies that a “covered security” must be listed or authorized for listing on a national exchange “at the time during which it is alleged that the misrepresentation, omission, or manipulative or deceptive conduct occurred.” §78bb(f )(5)(E). The Litigation Act sets forth exceptions. It does not apply to class actions with fewer than 51 “persons or prospective class members.” §78bb(f )(5)(B). It does not apply to actions brought on behalf of a State itself. §78bb(f )(3)(B)(i). It does not apply to class actions based on the law “of the State in which the issuer is incorporated.” §78bb(f )(3)(A)(i). And it reserves the authority of state securities commissions “to investigate and bring enforcement actions.” §78bb(f )(4). We are here primarily interested in the Litigation Act’s phrase “misrepresentation or omission of a material factin connection with the purchase or sale of a covered secu-rity.” §78bb(f )(1)(A). Unless this phrase applies to the class actions before us, the plaintiffs may maintain their state-law-based class actions, and they may do so either in federal or state court. Otherwise, their class actions are precluded altogether. See §78bb(f )(2) (providing for the removal from state to federal court of class actions that meet the specifications of paragraph 1, and for the dismissal of such suits by the district court). B 1 The plaintiffs in these actions (respondents here) say that Allen Stanford and several of his companies ran a multibillion dollar Ponzi scheme. Essentially, Stanford and his companies sold the plaintiffs certificates of deposit in Stanford International Bank. Those certificates “were debt assets that promised a fixed rate of return.” Roland v. Green, 675 F. 3d 503, 522 (CA5 2012). The plaintiffs expected that Stanford International Bank would use the money it received to buy highly lucrative assets. But instead, Stanford and his associates used the money provided by new investors to repay old investors, to finance an elaborate lifestyle, and to finance speculative real estate ventures. The Department of Justice brought related criminal charges against Allen Stanford. A jury convicted Stanford of mail fraud, wire fraud, conspiracy to commit money laundering, and obstruction of a Securities and Exchange Commission investigation. Stanford was sentenced to prison and required to forfeit $6 billion. The SEC, noting that the Bank certificates of deposit fell within the 1934 Securities Exchange Act’s broad definition of “security,” filed a §10(b) civil case against Allen Stanford, the Stanford International Bank, and related Stanford companies and associates. The SEC won the civil action, and the court imposed a civil penalty of $6 billion. 2 The plaintiffs in each of the four civil class actions are private investors who bought the Bank’s certificates of deposit. Two groups of plaintiffs filed their actions in Louisiana state court against firms and individuals who helped sell the Bank’s certificates by working as “investment advisers” affiliated with Stanford, or who provided Stanford-related companies with trust, insurance, accounting, or reporting services. (The defendants included a respondent here, SEI Investments Company.) The plaintiffs claimed that the defendants helped the Bank perpetrate the fraud, thereby violating Louisiana state law. Two other groups of plaintiffs filed their actions in federal court for the Northern District of Texas. One group sued Willis of Colorado (and related Willis companies) and Bowen, Miclette & Britt, two insurance brokers; the other group sued Proskauer Rose and Chadbourne & Parke, two law firms. Both groups claimed that the defendants helped the Bank (and Allen Stanford) perpetrate the fraud or conceal it from regulators, thereby violating Texas securities law. The Louisiana state-court defendants removed their cases to federal court, and the Judicial Panel on Multi-District Litigation moved the Louisiana cases to the Northern District of Texas. A single federal judge heard all four class actions. The defendants in each of the cases moved to dismiss the complaints. The District Court concluded that the Litigation Act required dismissal. The court recognized that the certificates of deposit themselves were not “covered securities” under the Litigation Act, for they were not “ ‘traded nationally [or] listed on a regulated national exchange.’ ” App. to Pet. for Cert. in No. 12–86, p. 62.But each complaint in one way or another alleged thatthe fraud included misrepresentations that the Bank maintained significant holdings in “ ‘highly marketable se-curities issued by stable governments [and] strong mul-tinational companies,’ ” and that the Bank’s ownership of these “covered” securities made investments in the uncovered certificates more secure. Id., at 66. The court concluded that this circumstance provided the requisite statutory “connection” between (1) the plaintiffs’ state-law fraud claims, and (2) “transactions in covered securities.” Id., at 64, 66–67. Hence, the court dismissed the class actions under the Litigation Act. Id., at 75. See also 675 F. 3d,at 511. All four sets of plaintiffs appealed. The Fifth Circuit reversed. It agreed with the District Court that the complaints described misrepresentations about the Bank’s investments in nationally traded securities. Still, the “heart, crux, and gravamen of” the “allegedly fraudulent scheme was representing . . . that the [uncovered] CDs were a ‘safe and secure’ investment that was preferable to other investments for many reasons.” Id., at 522. The court held that the falsehoods about the Bank’s holdings in covered securities were too “ ‘tangentially related’ ” to the “crux” of the fraud to trigger the Litigation Act. Id., at 520, 522 (quoting Madden v. Cowen & Co., 576 F. 3d 957, 965–966 (CA9 2009)). “That the CDs were marketed with some vague references to [the Bank’s] portfolio containing instruments that might be [covered by the Litigation Act] seems tangential to the schemes,” to the point where the complaints fall outside the scope of that Act. 675 F. 3d,at 522. Defendants in the four class actions sought certiorari. We granted their petitions. II The question before us concerns the scope of the Litigation Act’s phrase “misrepresentation or omission of a material fact in connection with the purchase or sale ofa covered security.” §78bb(f )(1)(A). How broad is that scope? Does it extend further than misrepresentations that are material to the purchase or sale of a covered security? In our view, the scope of this language does not extend further. To put the matter more specifically: A fraudulent misrepresentation or omission is not made “in connection with” such a “purchase or sale of a covered security” unless it is material to a decision by one or more individuals (other than the fraudster) to buy or to sell a “covered security.” We add that in Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71 (2006) , we held that the Litigation Act precluded a suit where the plaintiffs alleged a “fraudulent manipulation of stock prices” that was material to and “ ‘concide[d]’ with” third-party securities transactions, while also inducing the plaintiffs to “hold their stocks long beyond the point when, had the truth been known, they would have sold.” Id., at 75, 85, 89 (citing United States v. O’Hagan, 521 U. S. 642, 651 (1997) ). We do not here modify Dabit. A We reach this interpretation of the Litigation Act for several reasons. First, the Act focuses upon transactions in covered securities, not upon transactions in uncovered securities. An interpretation that insists upon a material connection with a transaction in a covered security is consistent with the Act’s basic focus. Second, a natural reading of the Act’s language supports our interpretation. The language requires the dismissal of a state-law-based class action where a private party alleges a “misrepresentation or omission of a material fact” (or engages in other forms of deception, not relevant here) “in connection with the purchase or sale of a covered secu-rity.” §78bb(f)(1). The phrase “material fact in connection with the purchase or sale” suggests a connection that matters. And for present purposes, a connection matters where the misrepresentation makes a significant difference to someone’s decision to purchase or to sell a covered security, not to purchase or to sell an uncovered security, something about which the Act expresses no concern. See generally Matrixx Initiatives, Inc. v. Siracusano, 563 U. S. ___, ___ (2011) (slip op., at 9–12) (a misrepresentation or omission is “material” if a reasonable investor would have considered the information significant when contemplating a statutorily relevant investment decision). Further, the “someone” making that decision to purchase or sell must be a party other than the fraudster. If the only party who decides to buy or sell a covered security as a result of a lie is the liar, that is not a “connection” that matters. Third, prior case law supports our interpretation. As far as we are aware, every securities case in which this Court has found a fraud to be “in connection with” a purchase or sale of a security has involved victims who took, who tried to take, who divested themselves of, who tried to divest themselves of, or who maintained an ownership interest in financial instruments that fall within the relevant statutory definition. See, e.g., Dabit, supra, at 77 (Litigation Act: victims were “holders” of covered securities that the defendant’s fraud caused to become overvalued); SEC v. Zandford, 535 U. S. 813, 822 (2002) (§10(b): victims were “duped into believing” that the defendant would “ ‘invest’ their assets in the stock market”); Wharf (Holdings) Ltd. v. United Int’l Holdings, Inc., 532 U. S. 588, 592 (2001) (§10(b): victim purchased an oral option to buy 10% of a company’s stock); O’Hagan, supra, at 655–656 (§10(b): victims were “members of the investing public” harmed by the defendant’s “gain[ing of an] advantageous market position” through insider trading); Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U. S. 6, 10 (1971) (§10(b): victim was “injured as an investor” when the fraud deprived it of “compensation for the sale of its valuable block of securities”). We have found no Court case involving a fraud “in connection with” the purchase or sale of a statutorily defined security in which the victims did not fit one of these descriptions. And the dissent apparently has not either. Although the dissent characterizes our approach as “new,” post, at 3, and tries to describe several of our prior cases, such as Zanford or Dabit, in a different way, post, at 14–15, it cannot escape the fact that every case it cites involved a victim who took, tried to take, or maintained an ownership position in the statutorily relevant securities through “purchases” or “sales” induced by the fraud. E.g., Zandford, supra, at 815, 820 (fraudster told customershe would “ ‘conservatively invest’ their money” in the stock market and made sales of “his customer’s securities,”but pocketed the proceeds (emphasis added)); Dabit, supra, at 76, 85, 89 (the “misrepresentations and manipulative tactics caused [the plaintiffs] to hold onto overvalued securities” while also inducing third parties to trade them); In re Orlando Joseph Jett, 82 S. E. C. Docket 1211, 1236–1237 (2004) (trader’s scheme “greatly inflated the reporting trading profits” that his firm “used to determine . . . the amount of capital he was permitted to commit on the firm’s behalf” (emphasis added)). Fourth, we read the Litigation Act in light of and consistent with the underlying regulatory statutes, the Securities Exchange Act of 1934 and the Securities Act of 1933. The regulatory statutes refer to persons engaged in securities transactions that lead to the taking or dissolving of ownership positions. And they make it illegal to deceive a person when he or she is doing so. Section 5 of the 1933 Act, for example, makes it unlawful to “offer to sell or offer to buy . . . any security, unless a registration statement has been filed as to such security.” 15 U. S. C. §77e(c). Section 17 of the 1933 Act makes it unlawful “in the offer or sale of any securities . . . to employ any device, scheme, or artifice to defraud, or to obtain money or propertyby means of any untrue statement of a material fact.” §§77q(a)(1)–(2). And §10(b) of the 1934 Act makes it unlawful to “use or employ, in connection with the purchase or sale of any security . . . any manipulative or de-ceptive device or contrivance.” §78j(b). Not only language but also purpose suggests a statutory focus upon transactions involving the statutorily relevant securities. The basic purpose of the 1934 and 1933 regulatory statutes is “to insure honest securities markets and thereby promote investor confidence.” See O’Hagan, su-pra, at 658. Nothing in the regulatory statutes suggests their object is to protect persons whose connection with the statutorily defined securities is more remote than words such as “buy,” “sell,” and the like, indicate. Nor does anything in the Litigation Act provide us with reasons for interpreting its similar language more broadly. The dissent correctly points out that the federal securities laws have another purpose, beyond protecting investors. Namely, they also seek to protect securities issuers, as well as the investment advisers, accountants, and brokers who help them sell financial products, from abusive class-action lawsuits. Post, at 5. Both the PSLRA and the Litigation Act were enacted in service of that goal. By imposing heightened pleading standards, limiting damages, and pre-empting state-law suits where the claims pertained to covered securities, Congress sought to reduce frivolous suits and mitigate legal costs for firms and investment professionals that participate in the market for nationally traded securities. We fail to see, however, how our decision today undermines that objective. The dissent worries our approach will “subject many persons and entities whose profession it is to give advice, counsel, and assistance in investing in the securities markets to complex and costly state-law litigation.” Post, at 4. To the contrary, the only issuers, investment advisers, or accountants that today’s decision will continue to subject to state-law liability are those who do not sell or participate in selling securities traded on U. S. national exchanges. We concede that this means a bank, chartered in Antigua and whose sole product is a fixed-rate debt instrument not traded on a U. S. exchange, will not be able to claim the benefit of preclusion under the Litigation Act. But it is difficult to see why the federal securities laws would be—or should be—concerned with shielding such entities from lawsuits. Fifth, to interpret the necessary statutory “connection” more broadly than we do here would interfere with state efforts to provide remedies for victims of ordinary state-law frauds. A broader interpretation would allow the Litigation Act to cover, and thereby to prohibit, a lawsuit brought by creditors of a small business that falsely represented it was creditworthy, in part because it owns or intends to own exchange-traded stock. It could prohibit a lawsuit brought by homeowners against a mortgage broker for lying about the interest rates on their mortgages—if, say, the broker (not the homeowners) later sold the mortgages to a bank which then securitized them in a pool and sold off pieces as “covered securities.” Brief for Sixteen Law Professors as Amici Curiae 24. The dissent all but admits this. Its proposed rule is that whenever “the purchase or sale of the securities [including by the fraudster] is what enables the fraud,” the Litigation Act pre-empts the suit. Post, at 12. In other words, any time one person convinces another to loan him money, by pretending he owns nationally traded securities or will acquire them for himself in the future, the action constitutes federal securities fraud, is subject to federal enforcement, and is also precluded by the Litigation Act if it qualifies as a “covered class action” under §78bb(f )(5)(B) (e.g., involves more than 50 members). Leaving aside whether this would work a significant expansion of the scope of liability under the federal securities laws, it unquestionably would limit the scope of protection under state laws that seek to provide remedies to victims of garden-variety fraud. The text of the Litigation Act reflects congressional care to avoid such results. Under numerous provisions, it purposefully maintains state legal authority, especially over matters that are primarily of state concern. See §§78bb(f )(1)(A)–(B) (limiting preclusion to lawsuits in-volving “covered,” i.e., nationally traded, securities); §78bb(f )(4) (providing that the “securities commission . . . of any State shall retain jurisdiction under the laws of such State to investigate and bring enforcement actions”); §78bb(f )(3)(B) (preserving States’ authority to bring suits of the kind forbidden to private class-action plaintiffs). See also 112Stat. 3227 (“Congress finds that . . . it is appropriate to enact national standards for securities class action lawsuits involving nationally traded securities, while preserving the appropriate enforcement powers of State securities regulators”). A broad interpretation of the Litigation Act works at cross-purposes with this state-oriented concern. Cf. Zandford, 535 U. S., at 820 (warning against “constru[ing]” the phrase “in connection with” “so broadly as to convert any common-law fraud that happens to involve securities into a violation of §10(b)”); Wharf (Holdings) Ltd., 532 U. S., at 596 (recognizing that “ordinary state breach-of-contract claims” are “actions that lie outside the [Securities Exchange] Act’s basic objectives”). B Respondents and the Government make two important counterarguments. Respondents point to statements we have made suggesting we should give the phrase “in connection with” a broad interpretation. In Dabit, for example, we said that the Court has consistently “espoused a broad interpretation” of “in connection with” in the context of §10(b) and Rule 10b–5, and we added that the Litigation Act language similarly warranted a “broad construction.” 547 U. S., at 85–86. In Bankers Life, we said that, if a deceptive practice “touch[es]” a securities transaction, it meets §10(b)’s “in connection with” requirement, 404 U. S., at 12, and in O’Hagan, we said the fraud and the purchase or sale of a security must simply “coincide.” 521 U. S., at 656. The idea, we explained in Zandford, is that the phrase “should be ‘construed not technically and restrictively, but flexibly to effectuate its remedial purposes.’ ” 535 U. S., at 819 (quoting Affiliated Ute Citizens ofUtah v. United States, 406 U. S. 128, 151 (1972) ). Every one of these cases, however, concerned a false statement (or the like) that was “material” to another individual’s decision to “purchase or s[ell]” a statutorily defined “security” or “covered security.” Dabit, supra, at 75–77; Zandford, supra, at 822; Wharf (Holdings) Ltd., supra, at 590–592; O’Hagan, supra, at 655–657; Bankers Life, supra, at 10. And the relevant statements or omissions were material to a transaction in the relevant securities by or on behalf of someone other than the fraudster. Second, the Government points out that §10(b) of the Securities Exchange Act also uses the phrase “in connection with the purchase or sale of any security.” 15 U. S. C. §78j(b). And the Government warns that a narrow interpretation of “in connection with” here threatens a simi-larly narrow interpretation there, which could limit the SEC’s enforcement capabilities. See Brief for United States as Amicus Curiae 28. We do not understand, however, how our interpretation could significantly curtail the SEC’s enforcement powers. As far as the Government has explained the matter, our interpretation seems perfectly consistent with past SEC practice. For one thing, we have cast no doubt on the SEC’s ability to bring enforcement actions against Stanford and Stanford International Bank. The SEC has already done so successfully. As we have repeatedly pointed out, the term “security” under §10(b) covers a wide range of financial products beyond those traded on national exchanges, apparently including the Bank’s certificatesof deposit at issue in these cases. No one here denies that, for §10(b) purposes, the “material” misrepresentations by Stanford and his associates were made “in connection with” the “purchases” of those certificates. We find it surprising that the dissent worries that our decision will “narro[w] and constric[t] essential protection for our national securities market,” post, at 3, and put “frauds like the one here . . . not within the reach of fed-eral regulation,” post, at 11. That would be news to Allen Stanford, who was sentenced to 110 years in federal prison after a successful federal prosecution, and to Stanford International Bank, which was ordered to pay billions in federal fines, after the same. Frauds like the one here—including this fraud itself—will continue to be within the reach of federal regulation because the authority of the SEC and Department of Justice extends to all “securities,” not just to those traded on national exchanges. 15 U. S. C. §78c(a)(10); accord, §77b(a)(1), §80a–2(a)(36), §80b–2(a)(18). When the fraudster peddles an uncovered secu-rity like the CDs here, the Federal Government will have the full scope of its usual powers to act. The only difference between our approach and that of the dissent, is that we also preserve the ability for investors to obtain relief under state laws when the fraud bears so remote a connection to the national securities market that no person actually believed he was taking an ownership position in that market. Thus, despite the Government’s and the dissent’s hand wringing, neither has been able to point to an example of any prior SEC enforcement action brought during the past 80 years that our holding today would have prevented the SEC from bringing. At oral argument, the Government referred to an administrative proceeding, In re Richard Line, 62 S. E. C. Docket 2879 (1996), as its best example. Our examination of the report of that case, however, indicates that the defendant was a fraudster to whom the fraud’s victims had loaned money, expecting that he would purchase securities on their behalf. Id., at 2880 (“Line represented to investors that he would invest their non-admitted assets in various securities, including U. S. Treasury notes, mutual fund shares, and collateralized debt obligations”); ibid. (“[He] fabricated account statements which falsely recited that securities had beenpurchased on behalf of certain investors”). The Government’s brief refers to two other proceedings as demonstrating the SEC’s broad §10(b) enforcement powers. Each, however, involved defrauded investors who had tried to take an ownership interest in the relevant securities. Jett, 82 S. E. C. Docket, at 1251 (involving a §10(b) action where a defrauded trading firm’s “decision to purchase or ‘invest’ in strips or bonds . . . stemmed directly from the activity that constituted the fraud”); In re D. S. Waddy & Co., 30 S. E. C. 367, 368 (1949) (involving a §10(b) action where a broker “appropriated to his own use money paid to him by customers for securities purchases”). We have examined SEC records without finding any further examples. For these reasons, the dissent’s warning that our de-cision will “inhibit” “litigants from using federal law to police frauds” and will “undermine the primacy of federal law in policing abuses in the securities markets” rings hollow. Post, at 4, 5. The dissent cannot point to one example of a federal securities action—public or private—that would have been permissible in the past but that our approach will disallow in the future. And the irony of the dissent’s position is that federal law would have precluded private recovery in these very suits, because §10(b) does not create a private right of action for investors vis-à-vis “secondary actors” or “aiders and abettors” of securities fraud. Stoneridge Investment Partners, 552 U. S., at 152, 155; Central Bank of Denver, 511 U. S., at 180; accord, Brief for Petitioners in No. 12–86, p. 46 (“Any federal securities action against Petitioners would clearly run afoul of Central Bank and Stoneridge”); Brief for Respon-dents 48 (same); Brief for United States as Amicus Curiae 28 (same). III Respondents’ complaints specify that their claims rest upon their purchases of uncovered, not of covered, securities. Our search for allegations that might bring their allegations within the scope of the Litigation Act reveals the following: (1) The first set of Texas plaintiffs alleged that they bought certificates of deposit from Stanford International Bank because they were told “the CDs issued by SIBwere safer even than U. S. bank-issued CDs” and “could be redeemed at any time,” given that the Bank “only invested the money [i.e., the Bank’s money obtained from its certificate sale proceeds] in safe, secure, and liquid assets.” App. 433. They claimed Stanford “touted the high quality of SIB’s investment portfolio,” and such falsehoods were material to their decision to purchase the uncovered certificates. Id., at 444. (2) The second set of Texas plaintiffs contended that they, too, purchased the Bank’s certificates on the belief “that their money was being invested in safe, liquid investments.” Id., at 715. They alleged that the Bank’s marketing materials stated it devoted “the greater part of its assets” to “first grade investment bonds (AAA, AA+, AA) and shares of stock (of great reputation, liquidity, and credibility).” Id., at 744 (emphasis deleted). (3) Both groups of Louisiana plaintiffs alleged that they were induced to purchase the certificates based on misrepresentations that the Bank’s assets were “ ‘invested in a well-diversified portfolio of highly marketable securities issued by stable governments, strong multinational companies and major international banks.’ ” Id., at 253, 345. And they claimed the “ ‘liquidity/marketability of SIB’s invested assets’ ” was “the most important factor to provide security to SIB clients.” Id., at 254. These statements do not allege, for Litigation Act purposes, misrepresentations or omissions of material fact “in connection with” the “purchase or sale of a covered secu-rity.” At most, the complaints allege misrepresentations about the Bank’s ownership of covered securities—fraudulent assurances that the Bank owned, would own, or would use the victims’ money to buy for itself shares of covered securities. But the Bank is an entity that made the misrepresentations. The Bank is the fraudster, not the fraudster’s victim. Nor is the Bank some other person transacting (or refraining from transacting, see Dabit, 547 U. S., at 75–77) in covered securities. And consequently, there is not the necessary “connection” between the materiality of the misstatements and the statutorily required “purchase or sale of a covered security.” See supra, at 8. A final point: The District Court found that one of the plaintiffs acquired Bank certificates “with the proceeds of selling” covered securities contained in his IRA portfolio. App. to Pet. for Cert. in No. 12–86, p. 70. The plaintiffs, however, did not allege that the sale of these covered securities (which were used to finance the purchase of the certificates) constituted any part of the fraudulent scheme. Nor did the complaints allege that Stanford or his associates were at all interested in how the plaintiffs obtained the funds they needed to purchase the certificates. Thus, we agree with the Court of Appeals that “[u]nlike Bankers Life and Zandford, where the entirety of the fraud depended upon the tortfeasor convincing the victims of those fraudulent schemes to sell their covered securities in order for the fraud to be accomplished, the allegations here are not so tied with the sale of covered securities.” 675 F. 3d, at 523. In our view, like that of the Court of Appeals, these sales constituted no relevant part of the fraud but were rather incidental to it. For these reasons the Court of Appeals’ judgment is affirmed. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus CHADBOURNE & PARKE LLP v. TROICE et al. certiorari to the united states court of appeals for the fifth circuit No. 12–79. Argued October 7, 2013—Decided February 26, 2014[1] The Securities Litigation Uniform Standards Act of 1998 (Litigation Act or Act) forbids the bringing of large securities class actions “based upon the statutory or common law of any State” in which the plaintiffs allege “a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security,” 15 U. S. C. §78bb(f)(1). The Act defines “covered security” to include, as relevant here, only securities traded on a national exchange. §§78bb(f)(5)(E), 77r(b)(1). Four sets of plaintiffs, respondents here, filed civil class actions under state law, contending that the defendants, petitioners here, helped Allen Stanford and his companies perpetrate a Ponzi scheme by falsely representing that uncovered securities (certificates of deposit in Stanford International Bank) that plaintiffs were purchasing were backed by covered securities. The District Court dismissed each case under the Litigation Act. Although the certificates of deposit were not covered securities, the court concluded, the Bank’s misrepresentation that its holdings in covered securities made investments in its uncovered securities more secure provided the requisite “connection” (under the Litigation Act) between the plaintiffs’ state-law actions and transactions in covered securities. The Fifth Circuit reversed, concluding that the falsehoods about the Bank’s holdings in covered securities were too tangentially related to the fraud to trigger the Litigation Act. Held: The Litigation Act does not preclude the plaintiffs’ state-law class actions. . (a) Several factors support the conclusion that the scope of §78bb(f)(1)(A)’s phrase “misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security” does not extend further than misrepresentations that are material to the decision by one or more individuals (other than the fraudster) to purchase or sell a covered security. First, this interpretation is consistent with the Act’s basic focus on transactions in covered, not uncovered, securities. Second, the interpretation is supported by the Act’s language. The phrase “material fact in connection with the purchase or sale” suggests a connection that matters. And a connection matters where the misrepresentation makes a significant difference to someone’s decision to purchase or to sell a covered security, not an uncovered one, something about which the Act expresses no concern. See Matrixx Initiatives, Inc. v. Siracusano, 563 U. S. ___, ___. Further, for the connection to matter, the “someone” making the decision to purchase or sell a covered security must be a party other than the fraudster. Third, the securities cases in which this Court has found a fraud to be “in connection with” a purchase or sale of a security, under both the Litigation Act and Section 10(b) of the Securities Exchange Act of 1934 (which also uses the “in connection with” phrase), have involved victims who took, who tried to take, who divested themselves of, who tried to divest themselves of, or who maintained an ownership interest in financial instruments that fall within the relevant statutory definition. See, e.g., Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 77. Fourth, this Court reads the Litigation Act in light of and consistent with the language and purpose of the underlying regulatory statutes, the Securities Exchange Act of 1934 and the Securities Act of 1933, which refer to persons engaged in securities transactions that lead to the taking or dissolving of ownership positions, and which make it illegal to deceive a person when he or she is doing so. The basic purpose of the 1934 and 1933 regulatory statutes is to protect investor confidence in the securities markets. Nothing in those statutes, or in the Litigation Act, suggests their object is to protect persons whose connection with the statutorily defined securities is more remote than buying or selling. Fifth, a broader interpretation of the necessary statutory “connection” would interfere with state efforts to provide remedies for victims of ordinary state-law frauds, despite the fact that the Litigation Act purposefully seeks to avoid such results by maintaining States’ legal authority over matters that are primarily of state concern, see, e.g., §§78bb(f)(4). . (b) Respondents and the Government make two important, but unavailing, counterarguments. First, they point to this Court’s suggestions that the phrase “in connection with” should be given a broad interpretation. But every case in which this Court interpreted the phrase to cover a fraud involved a false statement (or the like) that was “material” to another individual’s decision to “purchase or s[ell]” a statutorily defined “security” or “covered security,” e.g., Dabit, supra, at 75–77, and where the transaction was by or on behalf of someone other than the fraudster. Second, the Government warns that a narrow interpretation would curtail the Securities and Exchange Commission’s enforcement powers under §10(b) of the Securities Exchange Act, which uses the same “in connection with the purchase or sale” phrase. To the contrary, this Court’s interpretation is perfectly consistent with past SEC practice. The authority of the SEC and the Department of Justice extends to all “securities” under §10(b), not just to those traded on national exchanges. 15 U. S. C. §78c(a)(10). The SEC has accordingly brought successful enforcement actions against Stanford and his associates, based on the Bank’s fraudulent sales of certificates of deposit—products that are “securities” even if not “covered securities.” Neither the Government nor the dissent has pointed to an example of any prior SEC enforcement action that the instant holding would have prevented the SEC from bringing. . (c) Respondents’ complaints do not allege, for Litigation Act purposes, misrepresentations or omissions of material fact “in connection with” the “purchase or sale of a covered security.” At most, they allege misrepresentations about the Bank’s ownership of covered securities. But the Bank is the fraudster, not the fraudster’s victim; nor is it some other person transacting in covered securities. Thus, there is not the necessary “connection” between the materiality of the misstatements and the statutorily required “purchase or sale of a covered security.” In addition, while the District Court found that one plaintiff acquired Bank certificates with proceeds from the sale of covered securities, the plaintiffs did not allege that the sale of these covered securities constituted any part of the fraudulent scheme or that Stanford or his associates were interested in how the plaintiffs obtained the funds to purchase the certificates. Thus, those sales were only incidental to the fraud. . 675 F.3d 503, affirmed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, Ginsburg, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a concurring opinion. Kennedy, J., filed a dissenting opinion, in which Alito, J., joined. Notes 1 Together with No. 12–86, Willis of Colorado Inc. et al. v. Troice et al., and No. 12–88, Proskauer Rose LLP v. Troice et al., also on certiorari to the same court.

The Securities Litigation Uniform Standards Act of 1998 (Litigation Act) for-bids the bringing of large securities class actions based upon violations of state law. 15 U.S. C. §78bb(f)(1). The Act defines "class actions" as those involving more than 50 members, and defines "covered security" narrowly to include only securities traded on a national exchange (or, here irrelevant, those issued by investment companies). The complaint in each of the class actions alleged that the fraud included misrepresentations that the Bank maintained significant holdings in securities issued by stable governments and strong mul-truinational companies, but that the bank's ownership of these securities made investments in the uncovered certificates more secure. The District Court dismissed the class action under the Litigation Act. The Court of Appeals reversed, agreeing with the District Court that the complaints described misrepresentations about the Bank's investments in nationally traded securities, but holding that the falsehoods about the bank were too tangentially related to the crux of the fraud to trigger the Act. Held: The Act does not apply. . (a) Under Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, this holding does not limit the Federal Government's authority to prosecute frauds like the one here. The language of the Act, which focuses on transactions in covered securities, not upon transactions in uncovered securities, requires dismissal of a state-law-based class action where a private party alleges a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security. The phrase in the phrase suggests a connection that matters. Moreover, prior case law supports this interpretation, since every securities case in which this Court has found a fraud to be "in connection with" a purchase of a security has involved victims who took, who tried to take, who divested themselves of, or tried to divest themselves of the securities, something about which the Act expresses no concern. Pp. 462. (b) The Act is designed to preserve the ability for investors to obtain relief under state laws when the fraud bears so remote a connection to the national securities market that no person actually believed he was taking an ownership position in that market. Here, the Bank is an entity that made the misrepresentations, and there is not the necessary connection between the materiality of the misstatements and the statutorily required urchase or sale.. 675 F. 3d 511, affirmed. Affirmed. Vacated and remanded. EVENIOR, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST J., filed a dissenting opinion, post, p..

2013_13-339

https://www.oyez.org/cases/2013/13-339

, except as to Part II–D. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 94Stat. 2767, as amended, 42 U. S. C. §9601 et seq., contains a provision that by its terms pre-empts statutes of limitations applicable to state-law tort actions in certain circumstances. §9658. Section 9658 applies to statutes of limitations governing actions for personal injury or property damage arising from the release of a hazardous substance, pollutant, or contaminant into the environment. Section 9658 adopts what is known as the discovery rule. Under this framework, statutes of limitations in covered actions begin to run when a plaintiff discovers, or reasonably should have discovered, that the harm in question was caused by the contaminant. A person who is exposed to a toxic contaminant may not develop or show signs of resulting injury for many years, and so Congress enacted §9658 out of concern for long latency periods. It is undoubted that the discovery rule in §9658 pre-empts state statutes of limitations that are in conflict with its terms. The question presented in this case is whether §9658 also pre-empts state statutes of repose. A divided panel of the Court of Appeals for the Fourth Circuit held that §9658 does pre-empt statutes of repose. That holding was in error, and, for the reasons that follow, the judgment of the Court of Appeals must be reversed. I Congress enacted CERCLA in 1980 “to promote ‘ “the timely cleanup of hazardous waste sites” ’ and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.” Burlington N. & S. F. R. Co. v. United States, 556 U. S. 599, 602 (2009) (quoting Consolidated Edison Co. of New York v. UGI Utilities, Inc., 423 F. 3d 90, 94 (CA2 2005)). The Act provided a federal cause of action to recover costs of cleanup from culpable entities but not a federal cause of action for personal injury or property damage. Instead, CERCLA directed preparation of an expert report to determine “the ade-quacy of existing common law and statutory remedies in providing legal redress for harm to man and the environment caused by the release of hazardous substances into the environment,” including “barriers to recovery posed by existing statutes of limitations.” 42 U. S. C. §9651(e)(1), (3)(F). The 1982 report resulting from that statutory directive proposed certain changes to state tort law. Senate Committee on Environment and Public Works, Superfund Section 301(e) Study Group, Injuries and Damages from Hazardous Wastes—Analysis and Improvement of Legal Remedies, 97th Cong., 2d Sess. (Comm. Print 1982) (hereinafter Study Group Report or Report). As relevant here, the Study Group Report noted the long latency periods involved in harm caused by toxic substances and “recommend[ed] that all states that have not already done so, clearly adopt the rule that an action accrues when the plaintiff discovers or should have discovered the injury or disease and its cause.” Id., at pt. 1, 256. The Report further stated: “The Recommendation is intended also to cover the repeal of the statutes of repose which, in a number of states[,] have the same effect as some statutes of limitation in barring [a] plaintiff’s claim before he knows that he has one.” Ibid. Congress did not wait long for States to respond to some or all of the Report’s recommendations. Instead, Congress decided to act at the federal level. Congress amended CERCLA in 1986 to add the provision now codified in §9658. Whether §9658 repeals statutes of repose, as the Study Group Report recommended, is the question to be addressed here. The instant case arose in North Carolina, where CTS Corporation ran an electronics plant in Asheville from 1959 to 1985. (A subsidiary, CTS of Asheville, Inc., ran the plant until 1983, when CTS Corporation took over.) The plant manufactured and disposed of electronics and electronic parts. In the process, it stored the chemicals trichloroethylene (TCE) and cis-1, 2-dichloroethane (DCE). In 1987, CTS sold the property, along with a promise that the site was environmentally sound. The buyer eventually sold portions of the property to individuals who, along with adjacent landowners, brought this suit alleging damage from contaminants on the land. Those who alleged the injury and damage were the plaintiffs in the trial court and are respondents here. Their suit was brought in 2011, 24 years after CTS sold the property. The suit, filed in the United States District Court for the Western District of North Carolina, was a state-law nuisance action against CTS, petitioner here. Respondents sought “reclamation” of “toxic chemical contaminants” belonging to petitioner, “remediation of the environmental harm caused” by contaminants, and “monetary damages in an amount that will fully compensate them for all the losses and damages they have suffered, . . . and will suffer in the future.” App. to Pet. for Cert. 57a. Respondents claim that in 2009 they learned from the Environmental Protection Agency that their well water was contaminated, allegedly while petitioner operated its electronics plant. Citing North Carolina’s statute of repose, CTS moved to dismiss the claim. That statute prevents subjecting a defendant to a tort suit brought more than 10 years after the last culpable act of the defendant. N. C. Gen. Stat. Ann. §1–52(16) (Lexis 2013) (“[N]o cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action”); Robinson v. Wadford, ___ N. C. App. ___, ___, 731 S. E. 2d 539, 541 (2012) (referring to the provision as a “statute of repose”). Because CTS’ last act occurred in 1987, when it sold the electronics plant, the District Court accepted the recommendation of a Magistrate Judge and granted CTS’ motion to dismiss. A divided panel of the Court of Appeals for the Fourth Circuit reversed, ruling that §9658 pre-empted the statute of repose. 723 F. 3d 434 (2013). The majority found §9658 “ambiguous,” but also found that the interpretation in favor of pre-emption was preferable because of CERCLA’s remedial purpose. Id., at 443–444. Judge Thacker dissented. Id., at 445–454. She found the statutory text’s exclusion of statutes of repose to be “plain and unambiguous.” Id., at 445. She further indicated that, even “if the preemptive effect of §9658 were susceptible to two interpretations, a presumption against preemption would counsel that we should limit §9658’s preemptive reach to statutes of limitations without also extending it to statutes of repose.” Ibid. The Courts of Appeals, as well as the Supreme Court of South Dakota, have rendered conflicting judgments on this question. Compare Burlington N. & S. F. R. Co. v. Poole Chemical Co., 419 F. 3d 355, 362 (CA5 2005), and Clark County v. Sioux Equipment Corp., 2008 S. D. 60, ¶¶27–29, 753 N. W. 2d 406, 417, with McDonald v. Sun Oil Co., 548 F. 3d 774, 779 (CA9 2008). This Court granted certiorari. 571 U. S. ___ (2014). II A The outcome of the case turns on whether §9658 makes a distinction between state-enacted statutes of limitations and statutes of repose. Statutes of limitations and statutes of repose both are mechanisms used to limit the temporal extent or duration of liability for tortious acts. Both types of statute can operate to bar a plaintiff’s suit, and in each instance time is the controlling factor. There is considerable common ground in the policies underlying the two types of statute. But the time periods specified are measured from different points, and the statutes seek to attain different purposes and objectives. And, as will be explained, §9658 mandates a distinction between the two. In the ordinary course, a statute of limitations creates “a time limit for suing in a civil case, based on the date when the claim accrued.” Black’s Law Dictionary 1546 (9th ed. 2009) (Black’s); see also Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U. S. ___, ___ (2013) (slip op., at 4) (“As a general matter, a statute of limitations begins to run when the cause of action ‘ “accrues” ’—that is, when ‘the plaintiff can file suit and obtain relief’ ” (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., Inc., 522 U. S. 192, 201 (1997) )). Measured by this standard, a claim accrues in a personal-injury or property-damage action “when the injury occurred or was discovered.” Black’s 1546. For example, North Carolina, whose laws are central to this case, has a statute of limitations that allows a person three years to bring suit for personal injury or property damage, beginning on the date that damage “becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.” N. C. Gen. Stat. Ann. §1–52(16). A statute of repose, on the other hand, puts an outer limit on the right to bring a civil action. That limit is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant. A statute of repose “bar[s] any suit that is brought after a specified time since the defendant acted (such as by designing or manufacturing a product), even if this period ends before the plaintiff has suffered a resulting injury.” Black’s 1546. The statute of repose limit is “not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered.” 54 C. J. S., Limitations of Actions §7, p. 24 (2010) (hereinafter C. J. S.). The repose provision is therefore equivalent to “a cutoff,” Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350, 363 (1991) , in essence an “absolute . . . bar” on a defendant’s temporal liability, C. J. S. §7, at 24. Although there is substantial overlap between the policies of the two types of statute, each has a distinct purpose and each is targeted at a different actor. Statutes of limitations require plaintiffs to pursue “diligent prosecution of known claims.” Black’s 1546. Statutes of limitations “promote justice by preventing surprises through [plaintiffs’] revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Railroad Telegraphers v. Railway Express Agency, Inc., 321 U. S. 342 –349 (1944). Statutes of repose also encourage plaintiffs to bring actions in a timely manner, and for many of the same reasons. But the rationale has a different emphasis. Statutes of repose effect a legislative judgment that a defendant should “be free from liability after the legislatively determined period of time.” C. J. S. §7, at 24; see also School Board of Norfolk v. United States Gypsum Co., 234 Va. 32, 37, 360 S. E. 2d 325, 328 (1987) (“[S]tatutesof repose reflect legislative decisions that as a matter of policy there should be a specific time beyond which a defendant should no longer be subjected to protracted liability” (internal quotation marks omitted)). Like a discharge in bankruptcy, a statute of repose can be said to provide a fresh start or freedom from liability. Indeed, the Double Jeopardy Clause has been described as “a statute of repose” because it in part embodies the idea that at some point a defendant should be able to put past events behind him. Jones v. Thomas, 491 U. S. 376, 392 (1989) (Scalia, J., dissenting). One central distinction between statutes of limitations and statutes of repose underscores their differing purposes. Statutes of limitations, but not statutes of repose, are subject to equitable tolling, a doctrine that “pauses the running of, or ‘tolls,’ a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.” Lozano v. Montoya Alvarez, 572 U. S. 1 , ___ (2014) (slip op., at 7). Statutes of repose, on the other hand, generally may not be tolled, even in cases of extraordinary circumstances beyond a plaintiff’s control. See, e.g., Lampf, supra, at 363 (“[A] period of repose [is] inconsistent with tolling”); 4 C. Wright & A. Miller, Federal Practice and Procedure §1056, p. 240 (3d ed. 2002) (“[A] critical distinction is that a repose period is fixed and its expiration will not be delayed by estoppel or tolling”); Restatement (Second) of Torts §899, Comment g (1977). Equitable tolling is applicable to statutes of limitations because their main thrust is to encourage the plaintiff to “pursu[e] his rights diligently,” and when an “extraordinary circumstance prevents him from bringing a timely action,” the restriction imposed by the statute of limitations does not further the statute’s purpose. Lozano, supra, at ___ (slip op., at 7). But a statute of repose is a judgment that defendants should “be free from liability after the legislatively determined period of time, beyond which the liability will no longer exist and will not be tolled for any reason.” C. J. S. §7, at 24. As an illustrative example, under North Carolina law statutes of limitations may be tolled but statutes of repose may not. See, e.g., Monson v. Paramount Homes, Inc., 133 N. C. App. 235, 239–241, 515 S. E. 2d 445, 449 (1999). B The relevant provisions of §9658 and its definitions are central here, so the pre-emption directive is quoted in full: “(a) State statutes of limitations for hazardous substance cases “(1) Exception to State statutes “In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute. “(2) State law generally applicable “Except as provided in paragraph (1), the statute of limitations established under State law shall apply in all actions brought under State law for personal in-jury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility. . . . . . “(b) Definitions . . . . . “(2) Applicable limitations period “The term ‘applicable limitations period’ means the period specified in a statute of limitations during which a civil action referred to in subsection (a)(1) of this section may be brought. “(3) Commencement date “The term ‘commencement date’ means the date specified in a statute of limitations as the beginning of the applicable limitations period. “(4) Federally required commencement date “(A) In general “Except as provided in subparagraph (B), the term ‘federally required commencement date’ means the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (a)(1) of this section were caused or contributed to by the hazardous substance or pollutant or contaminant concerned. “(B) Special rules “In the case of a minor or incompetent plaintiff, the term ‘federally required commencement date’ means the later of the date referred to in subparagraph (A) or the following: “(i) In the case of a minor, the date on which the minor reaches the age of majority, as determined by State law, or has a legal representative appointed. “(ii) In the case of an incompetent individual, the date on which such individual becomes competent or has had a legal representative appointed.” On the facts of this case, petitioner does not contend that North Carolina’s 3-year statute of limitations bars respondents’ suit. Though the suit was filed in 2011, more than 20 years after petitioner sold the property at issue, respondents allege that they learned about the contamination only in 2009. C The Court now examines in more detail the question whether the state statute of repose is pre-empted by the federal statute. The Court of Appeals supported its interpretation of §9658 by invoking the proposition that remedial statutes should be interpreted in a liberal manner. The Court of Appeals was in error when it treated this as a substitute for a conclusion grounded in the statute’s text and structure. After all, almost every statute might be described as remedial in the sense that all statutes are designed to remedy some problem. And even if the Court identified some subset of statutes as especially remedial, the Court has emphasized that “no legislation pursues its purposes at all costs.” Rodriguez v. United States, 480 U. S. 522 –526 (1987) (per curiam). Congressional intent is discerned primarily from the statutory text. In any event, were the Court to adopt a presumption to help resolve ambiguity, substantial support also exists for the proposition that “the States’ coordinate role in government counsels against reading” federal laws such as §9658 “to restrict the States’ sovereign capacity to regulate” in areas of traditional state concern. FTC v. Phoebe Putney Health System, Inc., 568 U. S. ___, ___ (2013) (slip op., at 18). Turning to the statutory text, the Court notes first that §9658, in the caption of subsection (a), characterizes pre-emption as an “[e]xception” to the regular rule. §9658(a)(1). Section 9658 contains another subsection, with the heading “State law generally applicable,” that provides the rule that “the statute of limitations established under State law shall apply.” §9658(a)(2). Under this structure, state law is not pre-empted unless it fits into the precise terms of the exception. The statute defines the “applicable limitations period,” the “commencement date” of which is subject to pre-emption, as a period specified in “a statute of limitations.” §9658(b)(2). Indeed, §9658 uses the term “statute of limitations” four times (not including the caption), but not the term “statute of repose.” This is instructive, but it is not dispositive. While the term “statute of limitations” has acquired a precise meaning, distinct from “statute of repose,” and while that is its primary meaning, it must be acknowledged that the term “statute of limitations” is sometimes used in a less formal way. In that sense, it can refer to any provision restricting the time in which a plaintiff must bring suit. See Black’s 1546; see also Ernst & Ernst v. Hochfelder, 425 U. S. 185, 210 (1976) . Congress has used the term “statute of limitations” when enacting statutes of repose. See, e.g., 15 U. S. C. §78u–6(h)(1)(B)(iii)(I)(aa) (2012 ed.) (creating a statute of repose and placing it in a provision entitled “Statute of limitations”); 42 U. S. C. §2278 (same). And petitioner does not point out an example in which Congress has used the term “statute of repose.” So the Court must proceed to examine other evidence of the meaning of the term “statute of limitations” as it is used in §9658. The parties debate the historical development of the terms “statute of limitations” and “statute of repose” in an effort to show how these terms were likely understood in 1986, when Congress enacted §9658. It is apparent that the distinction between statutes of limitations and statutes of repose was understood by some courts and scholars before 1986. The 1977 Restatement of Torts noted that “[i]n recent years special ‘statutes of repose’ have been adopted in some states . . . . The statutory period in these acts is usually longer than that for the regular statute of limitations, but . . . may have run before a cause of action came fully into existence.” Restatement (Second) of Torts §899, Comment g. But that usage, now predominant, then was not the only definition of the two terms. One scholar, writing in 1981, described multiple usages of the terms, including both a usage in which the terms are equivalent and also the modern, more precise usage. McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am. U. L. Rev. 579, 584 (1981) (describing a statute of repose as “distinct from a statute of limitation because [a statute of repose] begins to run at a time unrelated to the traditional accrual of the cause of action”). Respondents note that an entry in Black’s Law Dictionary from 1979 describes a statute of limitations as follows: “Statutes of limitations are statutes of repose.” Black’s 835 (5th ed.). That statement likely reflects an earlier, broader usage in which the term “statute of repose” referred to all provisions delineating the time in which a plaintiff must bring suit. See, e.g., Pillow v. Roberts, 13 How. 472, 477 (1852) (“Statutes of limitation . . . are statutes of repose, and should not be evaded by a forced construction”); Rosenberg v. North Bergen, 61 N. J. 190, 201, 293 A. 2d 662, 667 (1972) (“All statutes limiting in any way the time within which a judicial remedy may be sought are statutes of repose”); Black’s 1077 (rev. 4th ed. 1968) (defining “statute of limitations” as “[a] statute . . . declaring that no suit shall be maintained . . . unless brought within a specified period after the right accrued. Statutes of limitation are statutes of repose”); Ballentine’s Law Dictionary 1233 (2d ed. 1948) (similar). That usage does not necessarily support respondents’ interpretation, because the broad usage of the term “statute of repose” does not mean that the term “statute of limitations” must refer to both types of statute. From all this, it is apparent that general usage of the legal terms has not always been precise, but the concept that statutes of repose and statutes of limitations are distinct was well enough established to be reflected in the 1982 Study Group Report, commissioned by Congress. In one of its recommendations, the Study Group Report called on States to adopt the discovery rule now embodied in §9658. Study Group Report, pt. 1, at 256. The Report acknowledged that statutes of repose were not equivalent to statutes of limitations and that a recommendation to pre-empt the latter did not necessarily include the former. For immediately it went on to state: “The Recommendation is intended also to cover the repeal of the statutes of repose which, in a number of states[,] have the same effect as some statutes of limitation in barring [a] plaintiff’s claim before he knows that he has one.” Ibid. The scholars and professionals who were discussing this matter (and indeed were advising Congress) knew of a clear distinction between the two. The Report clearly urged the repeal of statutes of repose as well as statutes of limitations. But in so doing the Report did what the statute does not: It referred to statutes of repose as a distinct category. And when Congress did not make the same distinction, it is proper to conclude that Congress did not exercise the full scope of its pre-emption power. While the use of the term “statute of limitations” in §9658 is not dispositive, the Court’s textual inquiry does not end there, for other features of the statutory text further support the exclusion of statutes of repose. The text of §9658 includes language describing the covered period in the singular. The statute uses the terms “the applicable limitations period,” “such period shall commence,” and “the statute of limitations established under State law.” This would be an awkward way to mandate the pre-emption of two different time periods with two different purposes. True, the Dictionary Act states that “words importing the singular include and apply to several persons, parties, or things” unless “the context indicates otherwise.” 1 U. S. C. §1. But the Court has relied on this directive when the rule is “ ‘necessary to carry out the evident intent of the statute.’ ” United States v. Hayes, 555 U. S. 415 , n. 5 (2009) (quoting First Nat. Bank in St. Louis v. Missouri, 263 U. S. 640, 657 (1924) ). As discussed, the context here shows an evident intent not to cover statutes of repose. Further, to return again to the definition of the “applicable limitations period,” the statute describes it as “the period” during which a “civil action” under state law “may be brought.” §9658(b)(2). It is true that in a literal sense a statute of repose limits the time during which a suit “may be brought” because it provides a point after which a suit cannot be brought. Ibid.; see C. J. S. §7, at 24 (“A statute of repose . . . limits the time within which an action may be brought”). But the definition of the “applicable limitations period” presupposes that “a [covered] civil action” exists. §9658(b)(2). Black’s Law Dictionary defines a “civil action” as identical to an “action at law,” which in relevant part is defined as a “civil suit stating a legal cause of action.” Black’s 32–33, 279 (9th ed. 2009); see also id., at 222 (5th ed. 1979). A statute of repose, however, as noted above, “is not related to the accrual of any cause of action.” C. J. S. §7, at 24. Rather, it mandates that there shall be no cause of action beyond a certain point, even if no cause of action has yet accrued. Thus, a statute of repose can prohibit a cause of action from coming into existence. See, e.g., N. C. Gen. Stat. Ann. §1–52(16) (“[N]o cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action”); see also Hargett v. Holland, 337 N. C. 651, 654–655, 447 S. E. 2d 784, 787 (1994) (“A statute of repose creates an additional element of the claim itself which must be satisfied in order for the claim to be maintained . . . . If the action is not brought within the specified period, the plaintiff literally has no cause of action” (internal quotation marks omitted)); Lamb v. Wedgewood South Corp., 308 N. C. 419, 440–441, 302 S. E. 2d 868, 880 (1983). A statute of repose can be said to define the scope of the cause of action, and therefore the liability of the defendant. See Hargett, supra, at 655–656, 447 S. E. 2d, at 788. In light of the distinct purpose for statutes of repose, the definition of “applicable limitations period” (and thus also the definition of “commencement date”) in §9658(b)(2) is best read to encompass only statutes of limitations, which generally begin to run after a cause of action accrues and so always limit the time in which a civil action “may be brought.” A statute of repose, however, may preclude an alleged tortfeasor’s liability before a plaintiff is entitled to sue, before an actionable harm ever occurs. Another and altogether unambiguous textual indication that §9658 does not pre-empt statutes of repose is that §9658 provides for equitable tolling for “minor or incompetent plaintiff[s].” §9658(b)(4)(B). As noted in the preceding discussion, a “critical distinction” between statutes of limitations and statutes of repose “is that a repose period is fixed and its expiration will not be delayed by estoppel or tolling.” 4 Wright, Federal Practice and Procedure §1056, at 240. As a consequence, the inclusion of a tolling rule in §9658 suggests that the statute’s reach is limited to statutes of limitations, which traditionally have been subject to tolling. It would be odd for Congress, if it did seek to pre-empt statutes of repose, to pre-empt not just the commencement date of statutes of repose but also state law prohibiting tolling of statutes of repose—all without an express indication that §9658 was intended to reach the latter. In addition to their argument that §9658 expressly pre-empts statutes of repose, respondents contend that §9658 effects an implied pre-emption because statutes of repose “creat[e] an unacceptable ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Wyeth v. Levine, 555 U. S. 555 –564 (2009) (quoting Hines v. Davidowitz, 312 U. S. 52, 67 (1941) ). Respondents argue that pre-emption of statutes of repose advances §9658’s purpose, namely to help plaintiffs bring tort actions for harm caused by toxic contaminants. But the level of generality at which the statute’s purpose is framed affects the judgment whether a specific reading will further or hinder that purpose. CERCLA, it must be remembered, does not provide a complete reme-dial framework. The statute does not provide a general cause of action for all harm caused by toxic contaminants. Section 9658 leaves untouched States’ judgments about causes of action, the scope of liability, the duration of the period provided by statutes of limitations, burdens of proof, rules of evidence, and other important rules governing civil actions. “ ‘The case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there [is] between them.’ ” Wyeth, supra, at 574–575 (quoting Bonito Boats v. Thunder Craft Boats, Inc., 489 U. S. 141 –167 (1989)). Respondents have not shown that in light of Congress’ decision to leave those many areas of state law untouched, statutes of repose pose an unacceptable obstacle to the attainment of CERCLA’s purposes. D Under a proper interpretation of §9658, statutes of repose are not within Congress’ pre-emption mandate. Although the natural reading of §9658’s text is that statutes of repose are excluded, the Court finds additional support for its conclusion in well-established “presumptions about the nature of pre-emption.” Medtronic, Inc. v. Lohr, 518 U. S. 470 –485 (1996) (citing Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 111 (1992) (Kennedy, J., concurring in part and concurring in judgment)). “[B]ecause the States are independent sovereigns in our federal system,” the Court “ ‘assum[es] that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” Medtronic, supra, at 485 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) ). It follows that “when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption.’ ” Altria Group, Inc. v. Good, 555 U. S. 70, 77 (2008) (quoting Bates v. Dow Agrosciences LLC, 544 U. S. 431, 449 (2005) ). That approach is “consistent with both federalism concerns and the historic primacy of state regulation of matters of health and safety.” Medtronic, 518 U. S., at 485. The effect of that presumption is to support, where plausible, “a narrow interpretation” of an express pre-emption provision, ibid., especially “when Congress has legislated in a field traditionally occupied by the States,” Altria, supra, at 77. The presumption has greatest force when Congress legislates in an area traditionally governed by the States’ police powers. See Rice, supra, at 230. “In our federal system, there is no question that States possess the ‘traditional authority to provide tort remedies to their citizens’ as they see fit.” Wos v. E. M. A., 568 U. S. ___, ___ (2013) (slip op., at 11) (quoting Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 248 (1984) ). The result of respondents’ interpretation would be that statutes of repose would cease to serve any real function. Respondents have not shown the statute has the clarity necessary to justify that reading. * * * The judgment of the Court of Appeals for the Fourth Circuit is reversed. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus CTS CORP. v. WALDBURGER et al. certiorari to the united states court of appeals for the fourth circuit No. 13–339. Argued April 23, 2014—Decided June 9, 2014 Federal law pre-empts state-law statutes of limitations in certain tort actions involving personal injury or property damage arising from the release of a hazardous substance, pollutant, or contaminant into the environment. 42 U. S. C. §9658. Petitioner CTS Corporation sold property on which it had stored chemicals as part its operations as an electronics plant. Twenty-four years later, respondents, the owners of portions of that property and adjacent landowners, sued, alleging damages from the stored contaminants. CTS moved to dismiss, citing a state statute of repose that prevented subjecting a defendant to a tort suit brought more than 10 years after the defendant’s last culpable act. Because CTS’s last act occurred when it sold the property, the District Court granted the motion. Finding §9658 ambiguous, the Fourth Circuit reversed, holding that the statute’s remedial purpose favored pre-emption. Held: The judgment is reversed. 723 F.3d 434, reversed. Justice Kennedy delivered the opinion of the Court with respect to all but Part II–D, concluding that §9658 does not pre-empt state statutes of repose. . (a) The outcome here turns on whether §9658 distinguishes between statutes of limitations and statutes of repose, which are both used to limit the temporal extent or duration of tort liability. There is considerable common ground in the policies underlying the two, but their specified time periods are measured differently and they seek to attain different purposes and objectives. Statutes of limitations are designed to promote justice by encouraging plaintiffs to pursue claims diligently and begin to run when a claim accrues. Statutes of repose effect a legislative judgment that a defendant should be free from liability after a legislatively determined amount of time and are measured from the date of the defendant’s last culpable act or omission. The application of equitable tolling underscores their difference in purpose. Because a statute of limitations’ purpose is not furthered by barring an untimely action brought by a plaintiff who was prevented by extraordinary circumstances from timely filing, equitable tolling operates to pause the running of the statute. The purpose of statutes of repose are unaffected by such circumstances, and equitable tolling does not apply. . (b) The text and structure of §9658 resolve this case. Under that provision, pre-emption is characterized as an “[e]xception,” §9658(a)(1), to the regular rule that the “the statute of limitations established under State law” applies. The “applicable limitations period,” the “commencement date” of which is subject to pre-emption, is defined as “the period specified in a statute of limitations.” §9658(b)(2). That term appears four times, and “statute of repose” does not appear at all. While it is apparent from the historical development of the two terms that their general usage has not always been precise, their distinction was well enough established to be reflected in the 1982 Study Group Report that guided §9658’s enactment, acknowledged the distinction, and urged the repeal of both types of statutes. Because that distinction is not similarly reflected in §9658, it is proper to conclude that Congress did not intend to pre-empt statutes of repose. Other textual features further support this conclusion. It would be awkward to use the singular “applicable limitations period” to mandate pre-emption of two different time periods with two different purposes. And the definition of that limitations period as “the period” during which a “civil action” under state law “may be brought,” §9658(b)(2), presupposes that a civil action exists. A statute of repose, in contrast, can prohibit a cause of action from ever coming into existence. Section 9658’s inclusion of a tolling rule also suggests that the statute’s reach is limited to statutes of limitations, which traditionally have been subject to tolling. Respondents contend that §9658 also effects an implied pre-emption because statutes of repose create an obstacle to Congress’ purposes and objectives, see Wyeth v. Levine, 555 U.S. 555, 563–564. But the level of generality at which the statute’s purpose is framed affects whether a specific reading will further or hinder that purpose. Here, where Congress chose to leave many areas of state law untouched, respondents have not shown that statutes of repose pose an unacceptable obstacle to the attainment of statutory purposes. . Kennedy, J., delivered the opinion of the Court, except as to Part II–D. Sotomayor, and Kagan, JJ., joined that opinion in full, and Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined as to all but Part II–D. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Roberts, C. J., and Thomas and Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined.

Section 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) provides that by its terms pre-empts statutes of limitations applicable to state-law tort actions in certain circumstances. Section 9658 adopts what is known as the discovery rule, which allows a person to bring a civil action for personal injury or property damage arising from the release of a hazardous substance, pollutant, or contaminant into the environment. Respondents, who were residents of North Carolina, brought a state nuisance action against CTS, petitioner here. CTS moved to dismiss the claim on the ground that North Carolina's 3-year statute of limitations barred the suit. The Court of Appeals reversed, finding §9658 unambiguous, but also finding that the interpretation in favor of pre-emption was preferable because of CERCLA's remedial purpose. Held: Section9658 does not make a distinction between state-enacted statutes of limitation and statutes of repose. . (a) Statutes of limitations, such as those in this case, are subject to equitable tolling, a doctrine that requires equitable equitable treatment when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action. P.. (b) The fact that, in 1986, Congress enacted § 9658, which authorizes the preemptive repeal of statutes of statutory limitations, leaves untouched States' judgments about causes of action, the scope of liability, the duration of the period provided by statutes, burdens of proof, rules of evidence, and other important rules governing civil actions. Cf. Black & Brown Law Dictionary 1546 (9th ed. 2009); see also Heimeshoff v. Hartford Life Insident Co., 571 U. S. ___, ; see also DOUGLAS v. BRENNAN,; see also Brown & Brown, 572 U.S. 1, ___ (2014). . (c) Nor does the fact that the statute in question does not provide a general cause of action for all harm caused by toxic contaminants preclude respondents from showing the statute has the clarity necessary to justify that reading. Although the text of the statute includes language describing the covered period in the singular, it uses the terms "the applicable limitations period,..., and such period shall commence, and the statute defines the commencement date" as a period specified in a statute of "a statute of limitations" (hereinafter C. J. S.). The text also includes a tolling rule that provides for equitable equitable relief for a minor or incompetent plaintiff. Such a rule would be odd for Congress, if it did so, to preempt not just the commencement date of the statutes of repose but also state law prohibiting tolling of such statutes, all without an express indication that it was intended to reach the latter. Moreover, the section leaves untouched States' judgments about the scope and duration of a covered period, the amount of time that must be accrued, and whether there is a covered or a repose period. See, e.g., NLRB v. Miller,,. In light of the distinct purpose of the two types of statutes to encourage plaintiffs to bring actions in a timely manner, the definition of the term "statute of limitations" in the statute is best read to encompass only those statutes that traditionally have been subject to tolling. Similarly, other features of the statutory text further support the exclusion of statutes. Thus, the result of respondents' interpretation would be that statutes would cease to serve any real function. Though the statute limits the time during which a suit "may be brought" because it provides a point after which the suit cannot be brought, it leaves untouched State's judgments about what to expect when the statute accrues, and even in cases of extraordinary circumstances beyond a plaintiff's control. And when Congress legislates in an area traditionally governed by the States' police powers, it is proper to assume the presumption that Congress did not exercise the full scope of its preemption power. Here, the evidence of the meaning of the terms of the phrase as it is used in §§9658 and of the provisions in §§19 and 20 of the Code of Civil Procedure indicates that they were likely understood in 1986 when Congress enacted the statute. This would be an awkward way to mandate the preemption of two different time periods with two different purposes, since the statute leaves untouched state courts and scholars alike, and since Congress has not shown that the phrase has the clear and manifest purpose of doing so. It follows that when Congress has legislated in a field traditionally occupied by the United States,

2013_11-965

https://www.oyez.org/cases/2013/11-965

. This case concerns the authority of a court in the United States to entertain a claim brought by foreign plaintiffs against a foreign defendant based on events occurring entirely outside the United States. The litigation commenced in 2004, when twenty-two Argentinian residents[1] filed a complaint in the United States District Court for the Northern District of California against DaimlerChrysler Aktiengesellschaft (Daimler),[2] a German public stock company, headquartered in Stuttgart, that manufactures Mercedes-Benz vehicles in Germany. The complaint alleged that during Argentina’s 1976–1983 “Dirty War,” Daimler’s Argentinian subsidiary, Mercedes-Benz Argentina (MB Argentina) collaborated with state security forces to kidnap, detain, torture, and kill certain MB Argentina workers, among them, plaintiffs or persons closely related to plaintiffs. Damages for the alleged human-rights violations were sought from Daimler under the laws of the United States, California, and Argentina. Jurisdiction over the lawsuit was predicated on the California contacts of Mercedes-Benz USA, LLC (MBUSA),a subsidiary of Daimler incorporated in Delaware withits principal place of business in New Jersey. MBUSA distributes Daimler-manufactured vehicles to independ-ent dealerships throughout the United States, including California. The question presented is whether the Due Process Clause of the Fourteenth Amendment precludes the District Court from exercising jurisdiction over Daimler in this case, given the absence of any California connectionto the atrocities, perpetrators, or victims described in the complaint. Plaintiffs invoked the court’s general or all-purpose jurisdiction. California, they urge, is a place where Daimler may be sued on any and all claims against it, wherever in the world the claims may arise. For example, as plaintiffs’ counsel affirmed, under the proffered jurisdictional theory, if a Daimler-manufactured vehicle overturned in Poland, injuring a Polish driver and passenger, the injured parties could maintain a design defect suit in California. See Tr. of Oral Arg. 28–29. Exercises of personal jurisdiction so exorbitant, we hold, are barred by due process constraints on the assertion of adjudicatory authority. In Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. ___ (2011), we addressed the distinction between general or all-purpose jurisdiction, and specific or conduct-linked jurisdiction. As to the former, we held that a court may assert jurisdiction over a foreign corporation “to hear any and all claims against [it]” only when the corporation’s affiliations with the State in which suit is brought areso constant and pervasive “as to render [it] essentially at home in the forum State.” Id., at ___ (slip op., at 2). Instructed by Goodyear, we conclude Daimler is not “at home” in California, and cannot be sued there for injuries plaintiffs attribute to MB Argentina’s conduct in Argentina. I In 2004, plaintiffs (respondents here) filed suit in the United States District Court for the Northern District of California, alleging that MB Argentina collaborated with Argentinian state security forces to kidnap, detain, torture, and kill plaintiffs and their relatives during the military dictatorship in place there from 1976 through 1983, a period known as Argentina’s “Dirty War.” Based on those allegations, plaintiffs asserted claims under the Alien Tort Statute, 28 U. S. C. §1350, and the Torture Victim Protection Act of 1991, 106Stat. 73, note following 28 U. S. C. §1350, as well as claims for wrongful death and intentional infliction of emotional distress under the laws of California and Argentina. The incidents recounted in the complaint center on MB Argentina’s plant in Gonzalez Catan, Argentina; no part of MB Argentina’s alleged col-laboration with Argentinian authorities took place in Cali-fornia or anywhere else in the United States. Plaintiffs’ operative complaint names only one corporate defendant: Daimler, the petitioner here. Plaintiffs seek to hold Daimler vicariously liable for MB Argentina’s alleged malfeasance. Daimler is a German Aktiengesellschaft (public stock company) that manufactures Mercedes-Benz vehicles in Germany and has its headquarters in Stuttgart. At times relevant to this case, MB Argentina was a subsidiary wholly owned by Daimler’s predecessor in interest. Daimler moved to dismiss the action for want of personal jurisdiction. Opposing the motion, plaintiffs submitted declarations and exhibits purporting to demonstrate the presence of Daimler itself in California. Alternatively, plaintiffs maintained that jurisdiction over Daimler could be founded on the California contacts of MBUSA, a distinct corporate entity that, according to plaintiffs, should be treated as Daimler’s agent for jurisdictional purposes. MBUSA, an indirect subsidiary of Daimler, is a Delaware limited liability corporation.[3] MBUSA serves as Daimler’s exclusive importer and distributor in the United States, purchasing Mercedes-Benz automobiles from Daimler in Germany, then importing those vehicles, and ultimately distributing them to independent dealerships located throughout the Nation. Although MBUSA’s principal place of business is in New Jersey, MBUSA has multiple California-based facilities, including a regional office in Costa Mesa, a Vehicle Preparation Center in Carson, and a Classic Center in Irvine. According to the record developed below, MBUSA is the largest supplier of luxury vehicles to the California market. In particular, over 10% of all sales of new vehicles in the United States take place in California, and MBUSA’s California sales account for 2.4% of Daimler’s worldwide sales. The relationship between Daimler and MBUSA is delineated in a General Distributor Agreement, which sets forth requirements for MBUSA’s distribution of Mercedes-Benz vehicles in the United States. That agreementestablished MBUSA as an “independent contracto[r]”that “buy[s] and sell[s] [vehicles] . . . as an independent business for [its] own account.” App. 179a. The agreement “does not make [MBUSA] . . . a general or special agent, partner, joint venturer or employee of DAIMLERCHRYSLER or any DaimlerChrysler Group Company”; MBUSA “ha[s] no authority to make binding obligations for or act on behalf of DAIMLERCHRYSLER or any DaimlerChrysler Group Company.” Ibid. After allowing jurisdictional discovery on plaintiffs’ agency allegations, the District Court granted Daimler’s motion to dismiss. Daimler’s own affiliations with California, the court first determined, were insufficient to support the exercise of all-purpose jurisdiction over the corporation. Bauman v. DaimlerChrysler AG, No. C–04–00194 RMW (ND Cal., Nov. 22, 2005), App. to Pet. for Cert. 111a–112a, 2005 WL 3157472, *9–*10. Next, the court declined to attribute MBUSA’s California contacts to Daimler on an agency theory, concluding that plaintiffs failed to demonstrate that MBUSA acted as Daimler’s agent. Id., at 117a, 133a, 2005 WL 3157472, *12, *19; Bauman v. DaimlerChrysler AG, No. C–04–00194 RMW (ND Cal., Feb. 12, 2007), App. to Pet. for Cert. 83a–85a, 2007 WL 486389, *2. The Ninth Circuit at first affirmed the District Court’s judgment. Addressing solely the question of agency, the Court of Appeals held that plaintiffs had not shown the existence of an agency relationship of the kind that might warrant attribution of MBUSA’s contacts to Daimler. Bauman v. DaimlerChrysler Corp., 579 F. 3d 1088, 1096–1097 (2009). Judge Reinhardt dissented. In his view, the agency test was satisfied and considerations of “reason-ableness” did not bar the exercise of jurisdiction. Id., at 1098–1106. Granting plaintiffs’ petition for rehearing, the panel withdrew its initial opinion and replaced it with one authored by Judge Reinhardt, which elaborated on reasoning he initially expressed in dissent. Bauman v. Daimler-Chrysler Corp., 644 F. 3d 909 (CA9 2011). Daimler petitioned for rehearing and rehearing en banc, urging that the exercise of personal jurisdiction over Daimler could not be reconciled with this Court’s decision in Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. ___ (2011). Over the dissent of eight judges, the Ninth Circuit denied Daimler’s petition. See Bauman v. DaimlerChrysler Corp., 676 F. 3d 774 (2011) (O’Scannlain, J., dissenting from denial of rehearing en banc). We granted certiorari to decide whether, consistent with the Due Process Clause of the Fourteenth Amendment, Daimler is amenable to suit in California courts for claims involving only foreign plaintiffs and conduct occurring entirely abroad. 569 U. S. ___ (2013). II Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons. See Fed. Rule Civ. Proc. 4(k)(1)(A) (service of process is effective to establish personal jurisdiction over a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located”). Under California’s long-arm statute, California state courts may exercise personal jurisdiction “on any basis not inconsistent with the Constitution of this state or of the United States.” Cal. Civ. Proc. Code Ann. §410.10 (West 2004). California’s long-arm statute allows the exercise of personal jurisdiction to the full extent permissible under the U. S. Constitution. We therefore inquire whether the Ninth Circuit’s holding comports with the limits imposed by federal due process. See, e.g., Burger King Corp. v. Rudzewicz, 471 U. S. 462, 464 (1985) . III In Pennoyer v. Neff, 95 U. S. 714 (1878) , decided shortly after the enactment of the Fourteenth Amendment, the Court held that a tribunal’s jurisdiction over persons reaches no farther than the geographic bounds of the forum. See id., at 720 (“The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established.”). See also Shaffer v. Heitner, 433 U. S. 186, 197 (1977) (Under Pennoyer, “any attempt ‘directly’ to assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State’s power.”). In time, however, that strict territorial approach yielded to a less rigid understanding, spurred by “changes in the technology of transportation and communication, and the tremendous growth of interstate business activity.” Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 617 (1990) (opinion of Scalia, J.). “The canonical opinion in this area remains International Shoe [Co. v. Washington], 326 U. S. 310 [(1945)], in which we held that a State may authorize its courts to exercise personal jurisdiction over an out-of-state defendant if the defendant has ‘certain minimum contacts with [the State] such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ” Goodyear, 564 U. S., at ___ (slip op., at 6) (quoting International Shoe, 326 U. S., at 316). Following International Shoe, “the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction.” Shaffer, 433 U. S., at 204. International Shoe’s conception of “fair play and substantial justice” presaged the development of two categories of personal jurisdiction. The first category is represented by International Shoe itself, a case in which the in-state activities of the corporate defendant “ha[d] not only been continuous and systematic, but also g[a]ve rise to the liabilities sued on.” 326 U. S., at 317.[4] International Shoe recognized, as well, that “the commission of some single or occasional acts of the corporate agent in a state” may sometimes be enough to subject the corporation to jurisdiction in that State’s tribunals with respect to suits relating to that in-state activity. Id., at 318. Adjudicatory author-ity of this order, in which the suit “aris[es] out of orrelate[s] to the defendant’s contacts with the forum,” Heli-copteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408 , n. 8 (1984), is today called “specific jurisdiction.” See Goodyear, 564 U. S., at ___ (slip op., at 7) (citing von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1144–1163 (1966) (hereinafter von Mehren & Trautman)). International Shoe distinguished between, on the one hand, exercises of specific jurisdiction, as just described, and on the other, situations where a foreign corporation’s “continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” 326 U. S., at 318. As we have since explained, “[a] court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Goodyear, 564 U. S., at ___ (slip op., at 2); see id., at ___ (slip op., at 7); Helicopteros, 466 U. S., at 414, n. 9.[5] Since International Shoe, “specific jurisdiction has become the centerpiece of modern jurisdiction theory, while general jurisdiction [has played] a reduced role.” Goodyear, 564 U. S., at ___ (slip op., at 8) (quoting Twitchell, The Myth of General Jurisdiction, 101 Harv. L. Rev. 610, 628 (1988)). International Shoe’s momentous departure from Pennoyer’s rigidly territorial focus, we have noted, unleashed a rapid expansion of tribunals’ ability to hear claims against out-of-state defendants when the episode-in-suit occurred in the forum or the defendant purposefully availed itself of the forum.[6] Our subsequent decisions have continued to bear out the prediction that “specific jurisdiction will come into sharper relief and form a considerably more significant part of the scene.” von Mehren & Trautman 1164.[7] Our post-International Shoe opinions on general jurisdiction, by comparison, are few. “[The Court’s] 1952 decision in Perkins v. Benguet Consol. Mining Co. remains the textbook case of general jurisdiction appropriately exercised over a foreign corporation that has not consented to suit in the forum.” Goodyear, 564 U. S., at ___ (slip op., at 11) (internal quotation marks and brackets omitted). The defendant in Perkins, Benguet, was a company incorporated under the laws of the Philippines, where it operated gold and silver mines. Benguet ceased its mining operations during the Japanese occupation of the Philippines in World War II; its president moved to Ohio, where he kept an office, maintained the company’s files, and oversaw the company’s activities. Perkins v. Benguet Consol. Mining Co., 342 U. S. 437, 448 (1952) . The plaintiff, an Ohio resident, sued Benguet on a claim that neither arose in Ohio nor related to the corporation’s activities in that State. We held that the Ohio courts could exercise general jurisdiction over Benguet without offending due process. Ibid. That was so, we later noted, because “Ohio was the corporation’s principal, if temporary, place of business.” Keeton v. Hustler Magazine, Inc., 465 U. S. 770 , n. 11 (1984).[8] The next case on point, Helicopteros, 466 U. S. 408 , arose from a helicopter crash in Peru. Four U. S. citizens perished in that accident; their survivors and representatives brought suit in Texas state court against the helicopter’s owner and operator, a Colombian corporation. That company’s contacts with Texas were confined to “sending its chief executive officer to Houston for a contract-negotiation session; accepting into its New York bank account checks drawn on a Houston bank; purchasing helicopters, equipment, and training services from [a Texas-based helicopter company] for substantial sums; and sending personnel to [Texas] for training.” Id., at 416. Notably, those contacts bore no apparent relationship to the accident that gave rise to the suit. We held that the company’s Texas connections did not resemble the “continuous and systematic general business contacts . . . found to exist in Perkins.” Ibid. “[M]ere purchases, even if occurring at regular intervals,” we clarified, “are not enough to warrant a State’s assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.” Id., at 418. Most recently, in Goodyear, we answered the question: “Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on claims unrelated to any activity of the subsidiaries in the forum State? ” 564 U. S., at ___ (slip op., at 1). That case arose from a bus accident outside Paris that killed two boys from North Carolina. The boys’ parents brought a wrongful-death suit in North Carolina state court alleging that the bus’s tire was defectively manufactured. The complaint named as defendants not only The Goodyear Tire and Rubber Company (Goodyear), an Ohio corporation, but also Goodyear’s Turkish, French, and Luxembourgian subsidiaries. Those foreign subsidiaries, which manufactured tires for sale in Europe and Asia, lacked any affiliation with North Caro-lina. A small percentage of tires manufactured by the foreign subsidiaries were distributed in North Carolina, however, and on that ground, the North Carolina Court of Appeals held the subsidiaries amenable to the general jurisdiction of North Carolina courts. We reversed, observing that the North Carolina court’s analysis “elided the essential difference between case-specific and all-purpose (general) jurisdiction.” Id., at ___ (slip op., at 10). Although the placement of a product into the stream of commerce “may bolster an affiliation germane to specific jurisdiction,” we explained, such contacts “do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant.” Id., at ___ (slip op., at 10–11). As International Shoe itself teaches, a corporation’s “continuous activity of some sorts within a state is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.” 326 U. S., at 318. Because Goodyear’s foreign subsidiaries were “in no sense at home in North Carolina,” we held, those subsidiaries could not be required to submit to the general jurisdiction of that State’s courts. 564 U. S., at ___ (slip op., at 13). See also J. McIntyre Machinery, Ltd. v. Nicastro, 564 U. S. ___, ___ (2011) (Ginsburg, J., dissenting) (slip op., at 7) (noting unanimous agreement that a foreign manufacturer, which engaged an independent U. S.-based distributor to sell its machines throughout the United States, could not be exposed to all-purpose jurisdiction in New Jersey courts based on those contacts). As is evident from Perkins, Helicopteros, and Goodyear, general and specific jurisdiction have followed markedly different trajectories post-International Shoe. Specific jurisdiction has been cut loose from Pennoyer’s sway, but we have declined to stretch general jurisdiction beyond limits traditionally recognized.[9] As this Court has increasingly trained on the “relationship among the defendant, the forum, and the litigation,” Shaffer, 433 U. S., at 204, i.e., specific jurisdiction,[10] general jurisdiction has cometo occupy a less dominant place in the contemporary scheme.[11] IV With this background, we turn directly to the question whether Daimler’s affiliations with California are sufficient to subject it to the general (all-purpose) personal jurisdiction of that State’s courts. In the proceedings below, the parties agreed on, or failed to contest, certain points we now take as given. Plaintiffs have never attempted to fit this case into the specific jurisdiction category. Nor did plaintiffs challenge on appeal the District Court’s holding that Daimler’s own contacts with California were, by themselves, too sporadic to justify the exercise of general jurisdiction. While plaintiffs ultimately persuaded the Ninth Circuit to impute MBUSA’s California contacts to Daimler on an agency theory, at no point have they maintained that MBUSA is an alter ego of Daimler. Daimler, on the other hand, failed to object below to plaintiffs’ assertion that the California courts could exercise all-purpose jurisdiction over MBUSA.[12] But see Brief for Petitioner 23, n. 4 (suggestion that in light of Goodyear, MBUSA may not be amenable to general jurisdiction in California); Brief for United States as Amicus Curiae 16, n. 5 (hereinafter U. S. Brief) (same). We will assume then, for purposes of this decision only, that MBUSA qualifies as at home in California. A In sustaining the exercise of general jurisdiction over Daimler, the Ninth Circuit relied on an agency theory, determining that MBUSA acted as Daimler’s agent for jurisdictional purposes and then attributing MBUSA’s California contacts to Daimler. The Ninth Circuit’s agency analysis derived from Circuit precedent consideringprincipally whether the subsidiary “performs services that are sufficiently important to the foreign corporation that if it did not have a representative to perform them, the corporation’s own officials would undertake to perform substantially similar services.” 644 F. 3d, at 920 (quoting Doe v. Unocal Corp., 248 F. 3d 915, 928 (CA9 2001); emphasis deleted). This Court has not yet addressed whether a foreign corporation may be subjected to a court’s general jurisdiction based on the contacts of its in-state subsidiary. Daimler argues, and several Courts of Appeals have held, that a subsidiary’s jurisdictional contacts can be imputed to its parent only when the former is so dominated by the latter as to be its alter ego. The Ninth Circuit adopted a less rigorous test based on what it described as an “agency” relationship. Agencies, we note, come in many sizes and shapes: “One may be an agent for some business purposes and not others so that the fact that one may be an agent for one purpose does not make him or her an agent for every purpose.” 2A C. J. S., Agency §43, p. 367 (2013) (footnote omitted).[13] A subsidiary, for example, might be its parent’s agent for claims arising in the place where the subsidiary operates, yet not its agent regarding claims arising elsewhere. The Court of Appeals did not advert to that prospect. But we need not pass judgment on invocation of an agency theory in the context of general jurisdiction, for in no event can the appeals court’s analysis be sustained. The Ninth Circuit’s agency finding rested primarily on its observation that MBUSA’s services were “important” to Daimler, as gauged by Daimler’s hypothetical readiness to perform those services itself if MBUSA did not exist. Formulated this way, the inquiry into importance stacks the deck, for it will always yield a pro-jurisdiction answer: “Anything a corporation does through an independent contractor, subsidiary, or distributor is presumably something that the corporation would do ‘by other means’ if the independent contractor, subsidiary, or distributor did not exist.” 676 F. 3d, at 777 (O’Scannlain, J., dissenting from denial of rehearing en banc).[14] The Ninth Circuit’s agency theory thus appears to subject foreign corporations to general jurisdiction whenever they have an in-state subsidiary or affiliate, an outcome that would sweep beyond even the “sprawling view of general jurisdiction” we rejected in Goodyear. 564 U. S., at ___ (slip op., at 12).[15] B Even if we were to assume that MBUSA is at home in California, and further to assume MBUSA’s contacts are imputable to Daimler, there would still be no basis to subject Daimler to general jurisdiction in California, for Daimler’s slim contacts with the State hardly render it at home there.[16] Goodyear made clear that only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there. “For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home.” 564 U. S., at ___ (slip op., at 7) (citing Brilmayer et al., A General Look at General Jurisdiction, 66 Texas L. Rev. 721, 728 (1988)). With respect to a corporation, the place of incorporation and principal place of business are “paradig[m] . . . bases for general jurisdiction.” Id., at 735. See also Twitchell, 101 Harv. L. Rev., at 633. Those affiliations have the virtue of being unique—that is, each ordinarily indicates only one place—as well as easily ascertainable. Cf. Hertz Corp. v. Friend, 559 U. S. 77, 94 (2010) (“Simple jurisdictional rules . . . promote greater predictability.”). These bases afford plaintiffs recourse to at least one clear and certain forum in which a corporate defendant may be sued on any and all claims. Goodyear did not hold that a corporation may be subject to general jurisdiction only in a forum where it is incor-porated or has its principal place of business; it simply typed those places paradigm all-purpose forums. Plaintiffs would have us look beyond the exemplar bases Goodyear identified, and approve the exercise of general jurisdiction in every State in which a corporation “engages in a substantial, continuous, and systematic course of business.” Brief for Respondents 16–17, and nn. 7–8. That formulation, we hold, is unacceptably grasping. As noted, see supra, at 7–8, the words “continuous and systematic” were used in International Shoe to describe instances in which the exercise of specific jurisdiction would be appropriate. See 326 U. S., at 317 (jurisdiction can be asserted where a corporation’s in-state activities are not only “continuous and systematic, but also give rise to the liabilities sued on”).[17] Turning to all-purpose jurisdiction, in contrast, International Shoe speaks of “instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit . . . on causes of action arising from dealings en-tirely distinct from those activities.” Id., at 318 (emphasis added). See also Twitchell, Why We Keep Doing Business With Doing-Business Jurisdiction, 2001 U. Chi. Legal Forum 171, 184 (International Shoe “is clearly not saying that dispute-blind jurisdiction exists whenever ‘continuous and systematic’ contacts are found.”).[18] Accordingly, the inquiry under Goodyear is not whether a foreign corporation’s in-forum contacts can be said to be in some sense “continuous and systematic,” it is whether that corporation’s “affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” 564 U. S., at ___ (slip op., at 2).[19] Here, neither Daimler nor MBUSA is incorporated in California, nor does either entity have its principal place of business there. If Daimler’s California activities sufficed to allow adjudication of this Argentina-rooted case in California, the same global reach would presumably be available in every other State in which MBUSA’s sales are sizable. Such exorbitant exercises of all-purpose jurisdiction would scarcely permit out-of-state defendants “to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.” Burger King Corp., 471 U. S., at 472 (internal quotation marks omitted). It was therefore error for the Ninth Circuit to conclude that Daimler, even with MBUSA’s contacts attributed to it, was at home in California, and hence subject to suit there on claims by foreign plaintiffs having nothing to do with anything that occurred or had its principal impact in California.[20] C Finally, the transnational context of this dispute bears attention. The Court of Appeals emphasized, as supportive of the exercise of general jurisdiction, plaintiffs’ assertion of claims under the Alien Tort Statute (ATS), 28 U. S. C. §1350, and the Torture Victim Protection Act of 1991 (TVPA), 106Stat. 73, note following 28 U. S. C. §1350. See 644 F. 3d, at 927 (“American federal courts, be they in California or any other state, have a strong interest in adjudicating and redressing international human rights abuses.”). Recent decisions of this Court, however, have rendered plaintiffs’ ATS and TVPA claims infirm. See Kiobel v. Royal Dutch Petroleum Co., 569 U. S. ___, ___ (2013) (slip op., at 14) (presumption against extra-territorial application controls claims under the ATS); Mohamad v. Palestinian Authority, 566 U. S. ___, ___ (2012) (slip op., at 1) (only natural persons are subject to liability under the TVPA). The Ninth Circuit, moreover, paid little heed to the risks to international comity its expansive view of general jurisdiction posed. Other nations do not share the uninhibited approach to personal jurisdiction advanced by the Court of Appeals in this case. In the European Union, for example, a corporation may generally be sued in the nation in which it is “domiciled,” a term defined to refer only to the location of the corporation’s “statutory seat,” “central administration,” or “principal place of business.” European Parliament and Council Reg. 1215/2012, Arts. 4(1), and 63(1), 2012 O. J. (L. 351) 7, 18. See also id., Art. 7(5), 2012 O. J. 7 (as to “a dispute arising out of the operations of a branch, agency or other establishment,” a corporation may be sued “in the courts for the place where the branch, agency or other establishment is situated” (emphasis added)). The Solicitor General informs us, in this regard, that “foreign governments’ objections to some domestic courts’ expansive views of general jurisdiction have in the past impeded negotiations of international agreements on the reciprocal recognition and enforcement of judgments.” U. S. Brief 2 (citing Juenger, The American Law of General Jurisdiction, 2001 U. Chi. Legal Forum 141, 161–162). See also U. S. Brief 2 (expressing concern thatunpredictable applications of general jurisdiction based on activities of U. S.-based subsidiaries could discourage foreign investors); Brief for Respondents 35 (acknowledging that “doing business” basis for general jurisdiction has led to “international friction”). Considerations of international rapport thus reinforce our determination that subjecting Daimler to the general jurisdiction of courts in California would not accord with the “fair play and substantial justice” due process demands. International Shoe, 326 U. S., at 316 (quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940) ). * * * For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is Reversed.Notes 1 One plaintiff is a resident of Argentina and a citizen of Chile; all other plaintiffs are residents and citizens of Argentina. 2 Daimler was restructured in 2007 and is now known as Daimler AG. No party contends that any postsuit corporate reorganization bears on our disposition of this case. This opinion refers to members of the Daimler corporate family by the names current at the time plaintiffs filed suit. 3 At times relevant to this suit, MBUSA was wholly owned by Daimler-Chrysler North America Holding Corporation, a Daimler subsidiary. 4 was an action by the State of Washington to collect payments to the State’s unemployment fund. Liability for the payments rested on in-state activities of resident sales solicitors engaged by the corporation to promote its wares in Washington. See 326 U. S., at 313–314. 5 Colloquy at oral argument illustrated the respective provinces of general and specific jurisdiction over persons. Two hypothetical scenarios were posed: , if a California plaintiff, injured in a California accident involving a Daimler-manufactured vehicle, sued Daimler in California court alleging that the vehicle was defectively designed, that court’s adjudicatory authority would be premised on specific juris-diction. See Tr. of Oral Arg. 11 (Daimler’s counsel acknowledgedthat specific jurisdiction “may well be . . . available” in such a case, de-pending on whether Daimler purposefully availed itself of the forum). , if a similar accident took place in Poland and injured Polish plaintiffs sued Daimler in California court, the question would be one of general jurisdiction. See at 29 (on plaintiffs’ view, Daimler would be amenable to such a suit in California). 6 See v., (“The immediate effect of [’s] departure from ’s conceptual apparatus was to increase the ability of the state courts to obtain personal jurisdiction over nonresident defendants.”); v. , (“[A] trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.”). For an early codification, see Uniform Interstate and International Procedure Act §1.02 (describing jurisdiction based on “[e]nduring [r]elationship” to encompass a person’s domicile or a corporation’s place of incorporation or principal place of business, and providing that “any . . . claim for relief ” may be brought in such a place), §1.03 (describing jurisdiction “[b]ased upon [c]onduct,” limited to claims arising from the enumerated acts, “transacting any business in th[e] state,” “contracting to supply services or things in th[e] state,” or “causing tortious injury by an act or omission in th[e] state”), 9B U. L. A. 308, 310 (1966). 7 See, v., (opinion of onnor, J.) (specific jurisdiction may lie over a foreign defendant that places a product into the “stream of commerce” while also “designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State”); v., (“[I]f the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others.”); v. , –790 (1984) (California court had specific jurisdiction to hear suit brought by California plaintiff where Florida-based publisher of a newspaper having its largest circulation in California published an article allegedly defaming the complaining Californian; under those circumstances, defendants “must ‘reasonably anticipate being haled into [a California] court’ ”); v. , –781 (1984) (New York resident may maintain suit for libel in New Hampshire state court against California-based magazine that sold 10,000 to 15,000 copies in New Hampshire each month; as long as the defendant “continuously and deliberately exploited the New Hampshire market,” it could reasonably be expected to answer a libel suit there). 8 Selectively referring to the trial court record in (as summarized in an opinion of the intermediate appellate court), posits that Benguet may have had extensive operations in places other than Ohio. See at 11–12, n. 8 (opinion concurring in judgment) (“By the time the suit [in ] was commenced, the company had resumed its considerable operations in the Philippines,” “rebuilding its properties there” and “purchasing machinery, supplies and equipment.” (internal quotation marks omitted)). See also at 7–8, n. 5 (many of the corporation’s “key management decisions” were made by the out-of-state purchasing agent and chief of staff ). ’s account overlooks this Court’s opinion in and the point on which that opinion turned: All of Benguet’s activities were directed by the company’s president from within Ohio. See v. , –448 (1952) (company’s Philippine mining operations “were completely halted during the occupation . . . by the Japanese”; and the company’s president, from his Ohio office, “supervised policies dealing with the rehabilitation of the corporation’s properties in the Philippines and . . . dispatched funds to cover purchases of machinery for such rehabilitation”). On another day, joined a unanimous Court in recognizing: “To the extent that the company was conducting any business during and immediately after the Japanese occupation of the Philippines, it was doing so in Ohio . . . .” , v. , 564 U. S. ___, ___ (2011) (slip op., at 11). Given the wartime circumstances, Ohio could be considered “a surrogate for the place of incorporation or head office.” von Mehren & Trautman 1144. See also ( “should be regarded as a decision on its exceptional facts, not as a significant reaffirmation of obsolescing notions of general jurisdiction” based on nothing more than a corporation’s “doing business” in a forum). 9 See generally von Mehren & Trautman 1177–1179. See also Twitchell, The Myth of General Jurisdiction, 101 Harv. L. Rev. 610, 676 (1988) (“[W]e do not need to justify broad exercises of dispute-blind jurisdiction unless our interpretation of the scope of specific jurisdiction unreasonably limits state authority over nonresident defendants.”); Borchers, The Problem With General Jurisdiction, 2001 U. Chi. Legal Forum 119, 139 (“[G]eneral jurisdiction exists as an imperfect safety valve that sometimes allows plaintiffs access to a reasonable forum in cases when specific jurisdiction would deny it.”). 10 Remarkably, treats specific jurisdiction as though it were barely there. Given the many decades in which specific jurisdiction has flourished, it would be hard to conjure up an example of the “deep injustice” predicts as a consequence of our holding that California is not an all-purpose forum for suits against Daimler. at 16. identifies “the concept of reciprocal fairness” as the “touchstone principle of due process in this field.” at 10 (citing , 326 U. S., at 319). She over-looks, however, that in the very passage of on which she relies, the Court left no doubt that it was addressing specific—not general—jurisdiction. See , at 319 (“The exercise of th[e]privilege [of conducting corporate activities within a State] may give rise to obligations, and, , a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.” (emphasis added)). 11 As the Court made plain in and repeats here, general jurisdiction requires affiliations “so ‘continuous and systematic’ as to render [the foreign corporation] essentially at home in the forum State.” 564 U. S., at ___ (slip op., at 2), comparable to a domestic enterprise in that State. 12 MBUSA is not a defendant in this case. 13 Agency relationships, we have recognized, may be relevant to the existence of jurisdiction. “[T]he corporate personality,” v. , ,observed, “is a fiction, although a fiction intended to be acted upon as though it were a fact.” ., at 316. See generally 1 W. Fletcher, Cyclopedia of the Law of Corporations §30, p. 30 (Supp. 2012–2013) (“A corporation is a distinct legal entity that can act only through its agents.”). As such, a corporation can purposefully avail itself of a forum by directing its agents or distributors to take action there. See, , 480 U. S., at 112 (opinion of O’onnor, J.) (defendant’s act of “marketing [a] product through a distributor who has agreed to serve as the sales agent in the forum State” may amount to purposeful availment); , 326 U. S., at 318 (“the commission of some single or occasional acts of the corporate agent in a state” may sometimes “be deemed sufficient to render the corporation liable to suit” on related claims). See also Brief for Petitioner 24 (acknowledging that “an agency relationship may be sufficient in some circumstances to give rise to jurisdiction”). It does not inevitably follow, however, that similar reasoning applies to jurisdiction. Cf. , 564 U. S., at ___ (slip op., at 10) (faulting analysis that “elided the essential difference between case-specific and all-purpose (general) jurisdiction”). 14 Indeed, plaintiffs do not defend this aspect of the Ninth Circuit’s analysis. See Brief for Respondents 39, n. 18 (“We do not believe that this gloss is particularly helpful.”). 15 The Ninth Circuit’s agency analysis also looked to whether the parent enjoys “the right to substantially control” the subsidiary’s activities. v. , 644 F. 3d 909, 924 (2011). The Court of Appeals found the requisite “control” demon-strated by the General Distributor Agreement between Daimler and MBUSA, which gives Daimler the right to oversee certain of MBUSA’s operations, even though that agreement expressly disavowed the creation of any agency relationship. Thus grounded, the separate inquiry into control hardly curtails the overbreadth of the Ninth Circuit’s agency holding. 16 By addressing this point, asserts, we have strayed from the question on which we granted certiorari to decide an issue not argued below. at 5–6. That assertion is doubly flawed. First, the question on which we granted certiorari, as stated in Daimler’s petition, is “whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.” Pet. for Cert. i. That question fairly encompasses an inquiry into whether, in light of , Daimler can be considered at home in California based on MBUSA’s in-state activities. See also this Court’s Rule 14.1(a) (a party’s statement of the question presented “is deemed to comprise every subsidiary question fairly included therein”). Moreover, both in the Ninth Circuit, see, Brief for Federation of German Industries et al. as in No. 07–15386 (CA9), p. 3, and in this Court, see, U. S. Brief 13–18; Brief for Chamber of Commerce of United States of America et al. as 6–23; Brief for Lea Brilmayer as 10–12, in support of Daimler homed in on the insufficiency of Daimler’s California contacts for general jurisdiction purposes. In short, and in light of our pathmarking opinion in , we perceive no unfairness in deciding today that California is not an all-purpose forum for claims against Daimler. 17 also recognized, as noted above, see at 7–8, that “some single or occasional acts of the corporate agent in a state. . . , because of their nature and quality and the circumstances of their commission, may be deemed sufficient to render the corporation liable to suit.” 326 U. S., at 318. 18 Plaintiffs emphasize two decisions, v. , , and v. , 220 N. Y. 259, 115 N. E. 915 (1917) (Cardozo, J.), both cited in v. , ,just after the statement that a corporation’s continuous operations in-state may suffice to establish general jurisdiction. , at 446, and n. 6. See also , 326 U. S., at 318 (citing ). and indeed upheld the exercise of general jurisdiction based on the presence of a local office, which signaled that the corporation was “doing business” in the forum. unadorned citations to these cases, both decided in the era dominated by ’s territorial thinking, see at 6–7, should not attract heavy reliance today. See generally Feder, , “Home,” and the Uncertain Future of Doing Business Jurisdiction, 63 S. C. L. Rev. 671 (2012) (questioning whether “doing business” should persist as a basis for general jurisdiction). 19 We do not foreclose the possibility that in an exceptional case, see, , described at 10–12, and n. 8,a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State. But this case presents no occasion to explore that question, because Daimler’s activities in California plainly do not approach that level. It is one thing to hold a corporation answerable for operations in the forum State, see , at 23, quite another to expose it to suit on claims having no connection whatever to the forum State. 20 To clarify in light of s opinion concurring in the judgment, the general jurisdiction inquiry does not “focu[s] solely on the magnitude of the defendant’s in-state contacts.” at 8. General jurisdiction instead calls for an appraisal of a corporation’s activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, “at home” would be synonymous with “doing business” tests framed before specific jurisdiction evolved in the United States. See von Mehren & Trautman 1142–1144. Nothing in and its progeny suggests that “a particular quantum of local activity” should give a State authority over a “far larger quantum of . . . activity” having no connection to any in-state activity. Feder, at 694.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus DAIMLER AG v. BAUMAN et al. certiorari to the united states court of appeals for the ninth circuit No. 11–965. Argued October 15, 2013—Decided January 14, 2014 Plaintiffs (respondents here) are twenty-two residents of Argentina who filed suit in California Federal District Court, naming as a defendant DaimlerChrysler Aktiengesellschaft (Daimler), a German public stock company that is the predecessor to petitioner Daimler AG. Their complaint alleges that Mercedes-Benz Argentina (MB Argentina), an Argentinian subsidiary of Daimler, collaborated with state security forces during Argentina’s 1976–1983 “Dirty War” to kidnap, detain, torture, and kill certain MB Argentina workers, among them, plaintiffs or persons closely related to plaintiffs. Based on those allegations, plaintiffs asserted claims under the Alien Tort Statute and the Torture Victim Protection Act of 1991, as well as under California and Argentina law. Personal jurisdiction over Daimler was predicated on the California contacts of Mercedes-Benz USA, LLC (MBUSA), another Daimler subsidiary, one incorporated in Delaware with its principal place of business in New Jersey. MBUSA distributes Daimler-manufactured vehicles to independent dealerships throughout the United States, including California. Daimler moved to dismiss the action for want of personal jurisdiction. Opposing that motion, plaintiffs argued that jurisdiction over Daimler could be founded on the California contacts of MBUSA. The District Court granted Daimler’s motion to dismiss. Reversing the District Court’s judgment, the Ninth Circuit held that MBUSA, which it assumed to fall within the California courts’ all-purpose jurisdiction, was Daimler’s “agent” for jurisdictional purposes, so that Daimler, too, should generally be answerable to suit in that State. Held: Daimler is not amenable to suit in California for injuries allegedly caused by conduct of MB Argentina that took place entirely outside the United States. . (a) California’s long-arm statute allows the exercise of personal jurisdiction to the full extent permissible under the U. S. Constitution. Thus, the inquiry here is whether the Ninth Circuit’s holding comports with the limits imposed by federal due process. See Fed. Rule Civ. Proc. 4(k)(1)(A). P. 6. (b) For a time, this Court held that a tribunal’s jurisdiction over persons was necessarily limited by the geographic bounds of the forum. See Pennoyer v. Neff, 95 U.S. 714. That rigidly territorial focus eventually yielded to a less wooden understanding, exemplified by the Court’s pathmarking decision in International Shoe Co. v. Washington, 326 U.S. 310. International Shoe presaged the recognition of two personal jurisdiction categories: One category, today called “specific jurisdiction,” see Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. ___, ___, encompasses cases in which the suit “arise[s] out of or relate[s] to the defendant’s contacts with the forum,” Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 414, n. 8. International Shoe distinguished exercises of specific, case-based jurisdiction from a category today known as “general jurisdiction,” exercisable when a foreign corporation’s “continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” 326 U. S., at 318. Since International Shoe, “specific jurisdiction has become the centerpiece of modern jurisdiction theory.” Goodyear, 564 U. S., at ___. This Court’s general jurisdiction opinions, in contrast, have been few. See Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, Helicopteros, 466 U. S., at 416, and Goodyear, 564 U. S., at ___. As is evident from these post-International Shoe decisions, while specific jurisdiction has been cut loose from Pennoyer’s sway, general jurisdiction has not been stretched beyond limits traditionally recognized. . (c) Even assuming, for purposes of this decision, that MBUSA qualifies as at home in California, Daimler’s affiliations with California are not sufficient to subject it to the general jurisdiction of that State’s courts. . (1) Whatever role agency theory might play in the context of general jurisdiction, the Court of Appeals’ analysis in this case cannot be sustained. The Ninth Circuit’s agency determination rested primarily on its observation that MBUSA’s services were “important” to Daimler, as gauged by Daimler’s hypothetical readiness to perform those services itself if MBUSA did not exist. But if “importan[ce]” in this sense were sufficient to justify jurisdictional attribution, foreign corporations would be amenable to suit on any or all claims wherever they have an in-state subsidiary or affiliate, an outcome that would sweep beyond even the “sprawling view of general jurisdiction” rejected in Goodyear. 564 U. S., at ___. . (2) Even assuming that MBUSA is at home in California and that MBUSA’s contacts are imputable to Daimler, there would still be no basis to subject Daimler to general jurisdiction in California. The paradigm all-purpose forums for general jurisdiction are a corporation’s place of incorporation and principal place of business. Goodyear, 564 U. S., at ___. Plaintiffs’ reasoning, however, would reach well beyond these exemplar bases to approve the exercise of general jurisdiction in every State in which a corporation “engages in a substantial, continuous, and systematic course of business.” Brief for Respondents 16–17, and nn. 7–8. The words “continuous and systematic,” plaintiffs and the Court of Appeals overlooked, were used in International Shoe to describe situations in which the exercise of specific jurisdiction would be appropriate. See 326 U. S., at 317. With respect to all-purpose jurisdiction, International Shoe spoke instead of “instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit . . . on causes of action arising from dealings entirely distinct from those activities.” Id., at 318. Accordingly, the proper inquiry, this Court has explained, is whether a foreign corporation’s “affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Goodyear, 564 U. S., at ___. Neither Daimler nor MBUSA is incorporated in California, nor does either entity have its principal place of business there. If Daimler’s California activities sufficed to allow adjudication of this Argentina-rooted case in California, the same global reach would presumably be available in every other State in which MBUSA’s sales are sizable. No decision of this Court sanctions a view of general jurisdiction so grasping. The Ninth Circuit, therefore, had no warrant to conclude that Daimler, even with MBUSA’s contacts attributed to it, was at home in California, and hence subject to suit there on claims by foreign plaintiffs having nothing to do with anything that occurred or had its principal impact in California. . (3) Finally, the transnational context of this dispute bears attention. This Court’s recent precedents have rendered infirm plaintiffs’ Alien Tort Statute and Torture Victim Protection Act claims. See Kiobel v. Royal Dutch Petroleum Co., 569 U. S. ___, ___, and Mohamad v. Palestinian Authority, 566 U. S. ___, ___. The Ninth Circuit, moreover, paid little heed to the risks to international comity posed by its expansive view of general jurisdiction. . 644 F.3d 909, reversed. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan, JJ., joined. Sotomayor, J., filed an opinion concurring in the judgment.

Respondents filed suit in Federal District Court in California against DaimlerChrysler Aktiengesellschaft (Daimler), a German public stock company headquartered in Stuttgart, that manufactures Mercedes-Benz vehicles in the United States. The complaint alleged that, during Argentina's 1976-1983 "Dirty War," Diamler's Argentinian subsidiary, MB Argentina (MB Argentina), collaborated with state security forces to kidnap, detain, torture, and kill certain MB Argentina workers, among them plaintiffs or persons closely related to plaintiffs. Plaintiffs sought damages for the alleged human-rights violations under the laws of California and Argentina. Jurisdiction over the lawsuit was predicated on the California contacts of MBUSA, an indirect subsidiary of Daimlers incorporated in Delaware withits principal place of business in New Jersey. MBUSA is the largest importer and distributor of luxury vehicles to the California market, purchasing such vehicles in California, then importing those vehicles and ultimately distributing them to independent dealerships throughout the Nation. Plaintiffs invoked MBUSA as an independent contracto that may be sued on any and all claims against it, wherever in the world the claims may arise. They alleged that MBUSA was not made a general or special agent, partner, joint venturer, or employee of the MBUSA subsidiary, and that, in any event, MBUSA had no authority to make binding obligations for or act on behalf of the subsidiary. After allowing jurisdictional discovery on plaintiffs' agency allegations, the District Court granted the defendants a motion to dismiss. The court held that plaintiffs had not shown the existence of an agency relationship of the kind that might warrant attributing MBUSA's contacts to the subsidiary on an agency theory, concluding that plaintiffs failed to demonstrate that MB USA acted as MBUSA agent. The Court of Appeals affirmed. Held: 1. The Due Process Clause of the Fourteenth Amendment precludes a court from exercising jurisdiction over the subsidiary in this case, given the absence of any California connectionto the atrocities, perpetrators, or victims described in the complaint. . (a) Exercises of personal jurisdiction so exorbitant are barred by due process constraints on the assertion of adjudicatory authority. A court may assert jurisdiction over a foreign corporation only when its affiliations with the State in which suit is brought areso constant and pervasive as to render it essentially at home in the forum State. Id., at ___ (slip op., at 2). See, e.g., Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. ___ (O.S. ___), at ___. P.. (b) The question on which certiorari was granted is whether it violates due process for a court to exercise general personal jurisdiction over an out-of-state defendant based solely on the fact that an indirect corporate subsidiary performs services for the defendant in a forum State, since the question here fairly encompasses an inquiry into whether, in light of, MB USA can be considered at home, California based on MBUSA in-state activities. Although plaintiffs ultimately persuaded the court to impute MBUSA’s California contacts to MBUSA on a theory, at no point have MBUSA maintained that MBMA is an alter ego of Daimlin. Moreover, there is no unfairness in deciding today that California is not an all-purpose forum for claims against the subsidiary, since it was not held that a corporation may be subject to general jurisdiction only in forum where it is incor-porated or has its principal place of business; it simply typed those places paradigm forums. Thus, for purposes of this decision only, the question whether MBUSA qualifies as at home in California should be determined by the courts below.. 2. The Ninth Circuit, in sustaining the exercise of general jurisdiction, relied on its agency theory. The agency analysis derived from Circuit precedent consideringprincipally whether the subsidiary performed services that are sufficiently important to the foreign corporation that it did not have to perform them, and based on this Court's precedents in other cases. However, the court did not advert to that prospect. In no event can the court's analysis be sustained. This Court need not pass judgment on invocation of the agency theory in the context of the general jurisdiction question, for in no event do the parties agree on, or fail to contest, certain points here. Pp. 468 U.S.. 3. The transnational context of this dispute bears attention. Petitioner, a resident of Argentina and a citizen of Argentina, and all other plaintiffs are residents and citizens of Argentina. While the Ninth Circuit emphasized, as noted in the petition, plaintiffs' assertion of claims under the Alien Tort Statute and the Torture Victim Protection Act of 1991 (TVPA) are, by themselves, too sporadic, it appears to subject the court as though it were barely there.

2013_12-1182

https://www.oyez.org/cases/2013/12-1182

. These cases concern the efforts of Congress and the Environmental Protection Agency (EPA or Agency) to cope with a complex problem: air pollution emitted in one State, but causing harm in other States. Left unregulated, the emitting or upwind State reaps the benefits of the economic activity causing the pollution without bearing all the costs. See Revesz, Federalism and Interstate Environmental Externalities, 144 U. Pa. L. Rev. 2341, 2343 (1996). Conversely, downwind States to which the pollution travels are unable to achieve clean air because of the influx of out-of-state pollution they lack authority to control. See S. Rep. No. 101–228, p. 49 (1989). To tackle the problem, Congress included a Good Neighbor Provision in the Clean Air Act (Act or CAA). That provision, in its current phrasing, instructs States to prohibit in-state sources “from emitting any air pollutant in amounts which will . . . contribute significantly” to downwind States’ “nonattainment . . . , or interfere with maintenance,” of any EPA-promulgated national air quality standard. 42 U. S. C. §7410(a)(2)(D)(i). Interpreting the Good Neighbor Provision, EPA adopted the Cross-State Air Pollution Rule (commonly and hereinafter called the Transport Rule). The rule calls for consideration of costs, among other factors, when determining the emission reductions an upwind State must make to improve air quality in polluted downwind areas. The Court of Appeals for the D. C. Circuit vacated the rule in its entirety. It held, 2 to 1, that the Good Neighbor Provision requires EPA to consider only each upwind State’s physically proportionate responsibility for each downwind State’s air quality problem. That reading is demanded, according to the D. C. Circuit, so that no State will be required to decrease its emissions by more than its ratable share of downwind-state pollution. In Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) , we reversed a D. C. Circuit decision that failed to accord deference to EPA’s reasonable interpretation of an ambiguous Clean Air Act provision. Satisfied that the Good Neighbor Provision does not command the Court of Appeals’ cost-blind construction, and that EPA reasonably interpreted the provision, we reverse the D. C. Circuit’s judgment. I A Air pollution is transient, heedless of state boundaries. Pollutants generated by upwind sources are often transported by air currents, sometimes over hundreds of miles, to downwind States. As the pollution travels out of state, upwind States are relieved of the associated costs. Those costs are borne instead by the downwind States, whose ability to achieve and maintain satisfactory air quality is hampered by the steady stream of infiltrating pollution. For several reasons, curtailing interstate air pollution poses a complex challenge for environmental regulators. First, identifying the upwind origin of downwind air pollution is no easy endeavor. Most upwind States propel pollutants to more than one downwind State, many downwind States receive pollution from multiple upwind States, and some States qualify as both upwind and downwind. See Brief for Federal Petitioners 6. The overlapping and interwoven linkages between upwind and downwind States with which EPA had to contend number in the thousands.[1] Further complicating the problem, pollutants do not emerge from the smokestacks of an upwind State and uniformly migrate downwind. Some pollutants stay within upwind States’ borders, the wind carries others to downwind States, and some subset of that group drifts to States without air quality problems. “The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.” The Holy Bible, John 3:8 (King James Version). In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind. Finally, upwind pollutants that find their way downwind are not left unaltered by the journey. Rather, as the gases emitted by upwind polluters are carried downwind, they are transformed, through various chemical processes, into altogether different pollutants. The offending gases at issue in these cases—nitrogen oxide (NOX) and sulfur dioxide (SO2)—often develop into ozone and fine particulate matter (PM2.5) by the time they reach the atmospheres of downwind States. See 76 Fed. Reg. 48222–48223 (2011). See also 69 Fed. Reg. 4575–4576 (2004) (describing the components of ozone and PM2.5). Downwind air quality must therefore be measured for ozone and PM2.5 concentrations. EPA’s chore is to quantify the amount of upwind gases (NOX and SO2) that must be reduced to enable downwind States to keep their levels of ozone and PM2.5 in check. B Over the past 50 years, Congress has addressed interstate air pollution several times and with increasing rigor. In 1963, Congress directed federal authorities to “encourage cooperative activities by the States and local governments for the prevention and control of air pollution.” 77Stat. 393, 42 U. S. C. §1857a (1964 ed.). In 1970, Congress made this instruction more concrete, introducing features still key to the Act. For the first time, Congress directed EPA to establish national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health. See 84Stat. 1679–1680, as amended, 42 U. S. C. §§7408, 7409 (2006 ed.). Once EPA settles on a NAAQS, the Act requires the Agency to designate “nonattainment” areas, i.e., locations where the concentration of a regulated pollutant exceeds the NAAQS. §7407(d). The Act then shifts the burden to States to propose plans adequate for compliance with the NAAQS. Each State must submit a State Implementation Plan, or SIP, to EPA within three years of any new or revised NAAQS. §7410(a)(1). If EPA determines that a State has failed to submit an adequate SIP, either in whole or in part, the Act requires the Agency to promulgate a Federal Implementation Plan, or FIP, within two years of EPA’s determina-tion, “unless the State corrects the deficiency” before a FIP is issued. §7410(c)(1).[2] The Act lists the matters a SIP must cover. Among SIP components, the 1970 version of the Act required SIPs to include “adequate provisions for intergovernmental cooperation” concerning interstate air pollution. §110(a)(2)(E), 84Stat. 1681, 42 U. S. C. §1857c–5(a)(2)(E). This statutory requirement, with its text altered over time, has cometo be called the Good Neighbor Provision. In 1977, Congress amended the Good Neighbor Provision to require more than “cooperation.” It directed States to submit SIPs that included provisions “adequate” to “prohibi[t] any stationary source within the State from emitting any air pollutant in amounts which will . . . prevent attainment or maintenance [of air quality standards] by any other State.” §108(a)(4), 91Stat. 693, 42 U. S. C. §7410(a)(2)(E) (1976 ed., Supp. II). The amended provision thus explicitly instructed upwind States to reduce emissions to account for pollution exported beyond their borders. As then written, however, the provision regulated only individual sources that, considered alone, emitted enough pollution to cause nonattainment in a downwind State. Because it is often “impossible to say that any single source or group of sources is the one which actually prevents attainment” downwind, S. Rep. No. 101–228, p. 21 (1989), the 1977 version of the Good Neighbor Provision proved ineffective, see ibid. (noting the provision’s inability to curb the collective “emissions [of] multiple sources”). Congress most recently amended the Good Neighbor Provision in 1990. The statute, in its current form, requires SIPs to “contain adequate provisions . . . prohibiting . . . any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any . . . [NAAQS].” 42 U. S. C. §7410(a)(2)(D)(i) (2006 ed.). The controversy before us centers on EPA’s most recent attempt to construe this provision. C Three times over the past two decades, EPA has attempted to delineate the Good Neighbor Provision’s scope by identifying when upwind States “contribute significantly” to nonattainment downwind. In 1998, EPA issued arule known as the “NOX SIP Call.” That regulation limited NOX emissions in 23 upwind States to the extent such emissions contributed to nonattainment of ozone standards in downwind States. See 63 Fed. Reg. 57356, 57358. In Michigan v. EPA, 213 F. 3d 663 (2000), the D. C. Circuit upheld the NOX SIP Call, specifically affirming EPA’s use of costs to determine when an upwind State’s contribution was “significan[t]” within the meaning of the statute. Id., at 674–679. In 2005, EPA issued the Clean Air Interstate Rule, or CAIR. 70 Fed. Reg. 25162. CAIR regulated both NOX and SO2 emissions, insofar as such emissions contributed to downwind nonattainment of two NAAQS, both set in 1997, one concerning the permissible annual measure of PM2.5, and another capping the average ozone level gauged over an 8-hour period. See id., at 25171. The D. C. Circuit initially vacated CAIR as arbitrary and capricious. See North Carolina v. EPA, 531 F. 3d 896, 921 (2008) (per curiam). On rehearing, the court decided to leave the rule in place, while encouraging EPA to act with dispatch in dealing with problems the court had identified. See North Carolina v. EPA, 550 F. 3d 1176, 1178 (2008) (per curiam). The rule challenged here—the Transport Rule—is EPA’s response to the D. C. Circuit’s North Carolina decision. Finalized in August 2011, the Transport Rule curtails NOX and SO2 emissions of 27 upwind States to achieve downwind attainment of three different NAAQS: the two 1997 NAAQS previously addressed by CAIR, and the 2006 NAAQS for PM2.5 levels measured on a daily basis. See 76 Fed. Reg. 48208–48209. Under the Transport Rule, EPA employed a “two-step approach” to determine when upwind States “contribute[d] significantly to nonattainment,” id., at 48254, and therefore in “amounts” that had to be eliminated. At step one, called the “screening” analysis, the Agency excluded as de minimis any upwind State that contributed less than one percent of the three NAAQS[3] to any downwind State “receptor,” a location at which EPA measures air quality. See id., at 48236–48237.[4] If all of an upwind State’s contributions fell below the one-percent threshold, that State would be considered not to have “contribute[d] signifi-cantly” to the nonattainment of any downwind State. Id., at 48236. States in that category were screened out and exempted from regulation under the rule. The remaining States were subjected to a second inquiry, which EPA called the “control” analysis. At this stage, the Agency sought to generate a cost-effective allocation of emission reductions among those upwind States “screened in” at step one. The control analysis proceeded this way. EPA first calculated, for each upwind State, the quantity of emissions the State could eliminate at each of several cost thresholds. See id., at 48248–48249. Cost for these purposes is measured as cost per ton of emissions prevented, for instance, by installing scrubbers on powerplant smokestacks.[5] EPA estimated, for example, the amount each upwind State’s NOX emissions would fall if all pollution sources within each State employed every control measure available at a cost of $500 per ton or less. See id., at 48249–48251. The Agency then repeated that analysis at ascending cost thresholds. See ibid.[6] Armed with this information, EPA conducted complex modeling to establish the combined effect the upwind reductions projected at each cost threshold would have on air quality in downwind States. See id., at 48249. The Agency then identified “significant cost threshold[s],” points in its model where a “noticeable change occurred in downwind air quality, such as . . . where large upwind emission reductions become available because a certain type of emissions control strategy becomes cost-effective.” Ibid. For example, reductions of NOX sufficient to resolve or significantly curb downwind air quality problems could be achieved, EPA determined, at a cost threshold of $500 per ton (applied uniformly to all regulated upwind States). “Moving beyond the $500 cost threshold,” EPA concluded, “would result in only minimal additional . . . reductions [in emissions].” Id., at 48256.[7] Finally, EPA translated the cost thresholds it had se-lected into amounts of emissions upwind States would be required to eliminate. For each regulated upwind State, EPA created an annual emissions “budget.” These budgets represented the quantity of pollution an upwind State would produce in a given year if its in-state sources implemented all pollution controls available at the chosen cost thresholds. See id., at 48249.[8] If EPA’s projected improvements to downwind air quality were to be realized, an upwind State’s emissions could not exceed the level this budget allocated to it, subject to certain adjustments not relevant here. Taken together, the screening and control inquiries defined EPA’s understanding of which upwind emissions were within the Good Neighbor Provision’s ambit. In short, under the Transport Rule, an upwind State “contribute[d] significantly” to downwind nonattainment to the extent its exported pollution both (1) produced one percent or more of a NAAQS in at least one downwind State (step one) and (2) could be eliminated cost-effectively, as determined by EPA (step two). See id., at 48254. Upwind States would be obliged to eliminate all and only emissions meeting both of these criteria.[9] For each State regulated by the Transport Rule, EPA contemporaneously promulgated a FIP allocating that State’s emission budget among its in-state sources. See id., at 48271, 48284–48287.[10] For each of these States, EPA had determined that the State had failed to submita SIP adequate for compliance with the Good Neighbor Provision. These determinations regarding SIPs became final after 60 days, see 42 U. S. C. §7607(b)(1)(2006 ed., Supp. V ), and many went unchallenged.[11] EPA views the SIP determinations as having triggered its statutory obligation to promulgate a FIP within two years, see §7410(c), a view contested by respondents, see Part II, infra. D A group of state and local governments (State respondents), joined by industry and labor groups (Industry respondents), petitioned for review of the Transport Rule in the U. S. Court of Appeals for the D. C. Circuit. Over the dissent of Judge Rogers, the Court of Appeals vacated the rule in its entirety. See 696 F. 3d 7, 37 (2012). EPA’s actions, the appeals court held, exceeded the Agency’s statutory authority in two respects. By promulgating FIPs before giving States a meaningful opportunity to adopt their own implementation plans, EPA had, in the court’s view, upset the CAA’s division of responsibility between the States and the Federal Government. In the main, the Court of Appeals acknowledged, EPA’s FIP authority is triggered at the moment the Agency disapproves a SIP. See id., at 30. Thus, when a State proposes a SIP inadequate to achieve a NAAQS, EPA could promulgate a FIP immediately after disapproving that SIP. See id., at 32. But the Court of Appeals ruled that a different regime applies to a State’s failure to meet its obligations under the Good Neighbor Provision. While a NAAQS was a “clear numerical target,” a State’s good neighbor obligation remained “nebulous and unknown,” the court observed, until EPA calculated the State’s emission budget. Ibid. Without these budgets, the Court of Appeals said, upwind States would be compelled to take a “stab in the dark” at calculating their own significant contribution to interstate air pollution. Id., at 35. The D. C. Circuit read the Act to avoid putting States in this position: EPA had an implicit statutory duty, the court held, to give upwind States a reasonable opportunity to allocate their emission budgets among in-state sources before the Agency’s authority to issue FIPs could be triggered. Id., at 37. The D. C. Circuit also held that the Agency’s two-part interpretation of the Good Neighbor Provision ignored three “red lines . . . cabin[ing the] EPA’s authority.” Id., at 19. First, the D. C. Circuit interpreted the Good Neighbor Provision to require upwind States to reduce emissions in “a manner proportional to their contributio[n]” to pollution in downwind States. Id., at 21. The Transport Rule, however, treated all regulated upwind States alike, regardless of their relative contribution to the overall problem. See id., at 23. It required all upwind States “screened in” at step one to reduce emissions in accord with the uniform cost thresholds set during the step two control analysis. Imposing these uniform cost thresholds, the Court of Appeals observed, could force some upwind States to reduce emissions by more than their “fair share.” Id., at 27. According to the Court of Appeals, EPA had also failed to ensure that the Transport Rule did not mandate up-wind States to reduce pollution unnecessarily. The Good Neighbor Provision, the D. C. Circuit noted, “targets [only] those emissions from upwind States that ‘contribute significantly to nonattainment’ ” of a NAAQS in downwind States. Id., at 22. Pollution reduction beyond that goal was “unnecessary over-control,” outside the purview of the Agency’s statutory mandate. Ibid. Because the emission budgets were calculated by reference to cost alone, the court concluded that EPA had done nothing to guard against, or even measure, the “over-control” potentially imposed by the Transport Rule. See ibid. Finally, by deciding, at the screening analysis, that upwind contributions below the one-percent threshold were insignificant, EPA had established a “floor” on the Agency’s authority to act. See id., at 20, and n. 13. Again pointing to the rule’s reliance on costs, the Court of Appeals held that EPA had failed to ensure that upwind States were not being forced to reduce emissions below the one-percent threshold. See ibid. In dissent, Judge Rogers criticized the majority for deciding two questions that were not, in her view, properly before the court. See id., at 40–46, 51–58. First, she addressed the majority’s insistence that FIPs abide a State’s opportunity to allocate its emission budget among in-state sources. She regarded the respondents’ plea to that effect as an untimely attack on EPA’s previous SIP disapprovals. See id., at 40–46. Second, in Judge Rogers’ assessment, the respondents had failed to raise their substantive objections to the Transport Rule with the specificity necessary to preserve them for review. See id., at 51–58. On the merits, Judge Rogers found nothing in the Act to require, or even suggest, that EPA must quan-tify a State’s good neighbor obligations before it promulgated a FIP. See id., at 46–51. She also disagreed with the court’s conclusion that the Transport Rule unreasonably interpreted the Act. See id., at 58–60. We granted certiorari to decide whether the D. C. Circuit had accurately construed the limits the CAA places on EPA’s authority. See 570 U. S. ___ (2013). II A Once EPA has calculated emission budgets, the D. C. Circuit held, the Agency must give upwind States the opportunity to propose SIPs allocating those budgets among in-state sources before issuing a FIP. 696 F. 3d, at 37. As the State respondents put it, a FIP allocating a State’s emission budget “must issue after EPA has quantified the States’ good-neighbor obligations [in an emission budget] and given the States a reasonable opportunity to meet those obligations in SIPs.” Brief for State Respondents 20. Before reaching the merits of this argument, we first reject EPA’s threshold objection that the claim is untimely. According to the Agency, this argument—and the D. C. Circuit’s opinion accepting it—rank as improper collateral attacks on EPA’s prior SIP disapprovals. As earlier recounted, see supra, at 9–10, EPA, by the time it issued the Transport Rule, had determined that each regulated upwind State had failed to submit a SIP adequate to satisfy the Good Neighbor Provision. Many of those determinations, because unchallenged, became final after 60 days, see 42 U. S. C. §7607(b)(1), and did so before the petitions here at issue were filed. EPA argues that the Court cannot question exercise of the Agency’s FIP authority without subjecting these final SIP disapprovals to untimely review. We disagree. The gravamen of the State respondents’ challenge is not that EPA’s disapproval of any particular SIP was erroneous. Rather, respondents urge that, notwithstanding these disapprovals, the Agency was obliged to grant an upwind State a second opportunity to promul-gate adequate SIPs once EPA set the State’s emission budget. This claim does not depend on the validity of the prior SIP disapprovals. Even assuming the legitimacy of those disapprovals, the question remains whether EPA was required to do more than disapprove a SIP, as the State respondents urge, to trigger the Agency’s statutory authority to issue a FIP.[12] B Turning to the merits, we hold that the text of the statute supports EPA’s position. As earlier noted, see supra, at 4–5, the CAA sets a series of precise deadlines to which the States and EPA must adhere. Once EPA issues any new or revised NAAQS, a State has three years to adopt a SIP adequate for compliance with the Act’s requirements. See 42 U. S. C. §7410(a)(1). Among those requirements is the Act’s mandate that SIPs “shall” include provisions sufficient to satisfy the Good Neighbor Provision. §7410(a)(2). If EPA determines a SIP to be inadequate, the Agency’s mandate to replace it with a FIP is no less absolute: “[EPA] shall promulgate a [FIP] at any time within 2 years after the [Agency] “(A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum [relevant] criteria . . . , or “(B) disapproves a [SIP] in whole or in part, “unless the State corrects the deficiency, and [EPA] approves the plan or plan revision, before the [Agency] promulgates such [FIP].” §7410(c)(1). In other words, once EPA has found a SIP inadequate, the Agency has a statutory duty to issue a FIP “at any time” within two years (unless the State first “corrects the deficiency,” which no one contends occurred here). The D. C. Circuit, however, found an unwritten exception to this strict time prescription for SIPs aimed at implementing the Good Neighbor Provision. Expecting any one State to develop a “comprehensive solution” to the “collective problem” of interstate air pollution without first receiving EPA’s guidance was, in the Court of Appeals’ assessment, “set[ting] the States up to fail.” 696 F. 3d, at 36–37. The D. C. Circuit therefore required EPA, after promulgating each State’s emission budget, to give the State a “reasonable” period of time to propose SIPs implementing its budget. See id., at 37. However sensible (or not) the Court of Appeals’ position,[13] a reviewing court’s “task is to apply the text [of the statute], not to improve upon it.” Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp., 493 U. S. 120, 126 (1989) . Nothing in the Act dif-ferentiates the Good Neighbor Provision from the several other matters a State must address in its SIP. Rather, the statute speaks without reservation: Once a NAAQS has been issued, a State “shall” propose a SIP within three years, §7410(a)(1), and that SIP “shall” include, among other components, provisions adequate to satisfy the Good Neighbor Provision, §7410(a)(2). Nor does the Act condition the duty to promulgate a FIP on EPA’s having first quantified an upwind State’s good neighbor obligations. As Judge Rogers observed in her dissent from the D. C. Circuit’s decision, the Act does not require EPA to furnish upwind States with information of any kind about their good neighbor obligations before a FIP issues. See 696 F. 3d, at 47. Instead, a SIP’s failure to satisfy the Good Neighbor Provision, without more, triggers EPA’s obligation to issue a federal plan within two years. §7410(c). After EPA has disapproved a SIP, the Agency can wait up to two years to issue a FIP, during which time the State can “correc[t] the deficiency” on its own. Ibid. But EPA is not obliged to wait two years or postpone its action even a single day: The Act empowers the Agency to promulgate a FIP “at any time” within the two-year limit. Ibid. Carving out an exception to the Act’s precise deadlines, as the D. C. Circuit did, “rewrites a decades-old statute whose plain text and structure establish a clear chronology of federal and State responsibilities.” 696 F. 3d, at 47 (Rogers, J., dissenting). The practical difficulties cited by the Court of Appeals do not justify departure from the Act’s plain text. See Barnhart v. Sigmon Coal Co., 534 U. S. 438 –462 (2002) (We “must presume that a legislature says in a statute what it means and means in a statute what it says there.” (internal quotation marks omitted)). When Congress elected to make EPA’s input a prerequisite to state action under the Act, it did so expressly. States developing vehicle inspection and maintenance programs under the CAA, for example, must await EPA guidance before issuing SIPs. 42 U. S. C. §7511a(c)(3)(B). A State’s obligation to adopt a SIP, moreover, arises only after EPA has first set the NAAQS the State must meet. §7410(a)(1). Had Congress intended similarly to defer States’ discharge of their obligations under the Good Neighbor Provision, Congress, we take it, would have included a similar direction in that section. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 341 (2005) (“We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.”). In short, nothing in the statute places EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obligations. By altering the schedule Congress provided for SIPs and FIPs, the D. C. Circuit stretched out the process. It allowed a delay Congress did not order and placed an information submission obligation on EPA Congress did not impose. The D. C. Circuit, we hold, had no warrant thus to revise the CAA’s action-ordering prescriptions. C At oral argument, the State respondents emphasized EPA’s previous decisions, in the NOX SIP Call and CAIR, to quantify the emission reductions required of upwind States before the window to propose a SIP closed. See Tr. of Oral Arg. 37–39, 42–43, 45–46. In their view, by failing to accord States a similar grace period after issuing States’ emission budgets, EPA acted arbitrarily. See ibid. Whatever pattern the Agency followed in its NOX SIP call and CAIR proceedings, EPA retained discretion to alter its course provided it gave a reasonable explanation for doing so. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 42 (1983) . The Agency presented such an explanation in the Transport Rule. As noted, see supra, at 6, the D. C. Circuit’s North Carolina decision admonished EPA to act with dispatch in amending or replacing CAIR, the Transport Rule’s predecessor. See 550 F. 3d, at 1178 (warning EPA that the stay of the court’s decision to vacate CAIR would not persist “indefinite[ly]”). Given North Carolina’s stress on expeditious action to cure the infir-mities the court identified in CAIR, EPA thoughtit “[in]appropriate to establish [the] lengthy transition period” entailed in allowing States time to propose new or amended SIPs implementing the Transport Rule emission budgets. See 76 Fed. Reg. 48220 (citing North Carolina, 550 F. 3d 1176). Endeavoring to satisfy the D. C. Circuit’s directive, EPA acted speedily, issuing FIPs contemporaneously with the Transport Rule. In light of the firm deadlines imposed by the Act, which we hold the D. C. Circuit lacked authority to alter, we cannot condemn EPA’s decision as arbitrary or capricious.[14] III A The D. C. Circuit also held that the Transport Rule’s two-step interpretation of the Good Neighbor Provision conflicts with the Act. Before addressing this holding, we take up a jurisdictional objection raised by EPA. The CAA directs that “[o]nly an objection to a rule . . . raised with reasonable specificity during the period for public comment . . . may be raised during judicial review.” 42 U. S. C. §7607(d)(7)(B). Respondents failed to state their objections to the Transport Rule during the comment period with the “specificity” required for preservation, EPA argues. See Brief for Federal Petitioners 34–42. This failure at the administrative level, EPA urges, forecloses judicial review. Id., at 34. Assuming, without deciding, that respondents did not meet the Act’s “reasonable specificity” requirement during the comment period, we do not regard that lapse as “jurisdictional.” This Court has cautioned against “profligate use” of the label “jurisdictional.” Sebelius v. Auburn Regional Medical Center, 568 U. S. ___, ___ (2013) (slip op., at 6). A rule may be “mandatory,” yet not “jurisdictional,” we have explained. See Arbaugh v. Y & H Corp., 546 U. S. 500, 510 (2006) . Section 7607(d)(7)(B), we hold, is of that character. It does not speak to a court’s authority, but only to a party’s procedural obligations. See Kontrick v. Ryan, 540 U. S. 443, 455 (2004) . Had EPA pursued the “reasonable specificity” argument vigorously before the D. C. Circuit, we would be obligated to address the merits of the argument. See Gonzalez v. Thaler, 565 U. S. ___, ___ (2012) (slip op., at 10). But EPA did not press the argument unequivocally. Before the D. C. Circuit, it indicated only that the “reasonable specificity” prescription might bar judicial review. Brief for Respondent EPA et al. in No. 11–1302 (CADC), p. 30. See also id., at 32. We therefore do not count the prescription an impassable hindrance to our adjudication of the respondents’ attack on EPA’s interpretation of the Transport Rule. We turn to that attack mindful of the importance of the issues respondents raise to the ongoing implementation of the Good Neighbor Provision. B We routinely accord dispositive effect to an agency’s reasonable interpretation of ambiguous statutory language. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) , is the pathmarking decision, and it bears a notable resemblance to the cases before us. Chevron concerned EPA’s definition of the term “source,” as used in the 1977 Amendments to the CAA. Id., at 840, n. 1. Those amendments placed additional restrictions on companies’ liberty to add new pollution “sources” to their factories. See id., at 840. Although “source” might have been interpreted to refer to an individual smokestack, EPA construed the term to refer to an entire plant, thereby “treat[ing] all of the pollution-emitting devices within the [plant] as though they were encased within a single ‘bubble.’ ” Ibid. Under the Agency’s interpretation, a new pollution-emitting device would not subject a plant to the additional restrictions if the “alteration [did] not increase the total emissions [produced by] the plant.” Ibid. This Court held EPA’s interpretation of “source” a reasonable construction of an ambiguous statutory term. When “Congress has not directly addressed the precise [interpretative] question at issue,” we cautioned, a reviewing court cannot “simply impose its own construction o[f] the statute.” Id., at 843. Rather, the agency is charged with filling the “gap left open” by the ambiguity. Id., at 866. Because “ ‘a full understanding of the force of the statutory policy . . . depend[s] upon more than ordinary knowledge’ ” of the situation, the administering agency’s construction is to be accorded “controlling weight unless . . . arbitrary, capricious, or manifestly contrary to the statute.” Id., at 844 (quoting United States v. Shimer, 367 U. S. 374, 382 (1961) ). Determining that none of those terms fit EPA’s interpretation of “source,” the Court deferred to the Agency’s judgment. We conclude that the Good Neighbor Provision delegates authority to EPA at least as certainly as the CAA provisions involved in Chevron. The statute requires States to eliminate those “amounts” of pollution that “contribute significantly to nonattainment” in downwind States. 42 U. S. C. §7410(a)(2)(D)(i) (emphasis added). Thus, EPA’s task[15] is to reduce upwind pollution, but only in “amounts” that push a downwind State’s pollution concentrations above the relevant NAAQS. As noted earlier, however, the nonattainment of downwind States results from the collective and interwoven contributions of multiple upwind States. See supra, at 3. The statute therefore callsupon the Agency to address a thorny causation problem: How should EPA allocate among multiple contributing up-wind States responsibility for a downwind State’s excess pollution? A simplified example illustrates the puzzle EPA faced. Suppose the Agency sets a NAAQS, with respect to a particular pollutant, at 100 parts per billion (ppb), and that the level of the pollutant in the atmosphere of downwind State A is 130 ppb. Suppose further that EPA has determined that each of three upwind States—X, Y, and Z—contributes the equivalent of 30 ppb of the relevant pollutant to State A’s airspace. The Good Neighbor Provision, as just observed, prohibits only upwind emissions that contribute significantly to downwind nonattainment. EPA’s authority under the provision is therefore limited to eliminating a total of 30 ppb,[16] i.e., the overage caused by the collective contribution of States X, Y, and Z.[17] How is EPA to divide responsibility among the three States? Should the Agency allocate reductions proportionally (10 ppb each), on a per capita basis, on the basis of the cost of abatement, or by some other metric? See Brief for Federal Petitioners 50 (noting EPA’s consideration of different approaches). The Good Neighbor Provision does not answer that question for EPA. Cf. Chevron, 467 U. S., at 860 (“[T]he language of [the CAA] simply does not compel any given interpretation of the term ‘source.’ ”). Under Chevron, we read Congress’ silence as a delegation of authority to EPA to select from among reasonable options. See United States v. Mead Corp., 533 U. S. 218, 229 (2001) .[18] Yet the Court of Appeals believed that the Act speaks clearly, requiring EPA to allocate responsibility for reducing emissions in “a manner proportional to” each State’s “contributio[n]” to the problem. 696 F. 3d, at 21. Nothing in the text of the Good Neighbor Provision propels EPA down this path. Understandably so, for as EPA notes, the D. C. Circuit’s proportionality approach could scarcely be satisfied in practice. See App. in No. 11–1302 etc. (CADC), p. 2312 (“[W]hile it is possible to determine an emission reduction percentage if there is a single downwind [receptor], most upwind states contribute to multiple downwind [receptors] (in multiple states) and would have a different reduction percentage for each one.”). To illustrate, consider a variation on the example set out above. Imagine that States X and Y now contribute air pollution to State A in a ratio of one to five, i.e., State Y contributes five times the amount of pollution to State A than does State X. If State A were the only downwind State to which the two upwind States contributed, the D. C. Circuit’s proportionality requirement would be easy to meet: EPA could require State Y to reduce its emissions by five times the amount demanded of State X. The realities of interstate air pollution, however, are not so simple. Most upwind States contribute pollution to multiple downwind States in varying amounts. See 76 Fed. Reg. 48239–48246. See also Brief for Respondent Calpine Corp. et al. in Support of Petitioners 48–49 (offering examples). Suppose then that States X and Y also contribute pollutants to a second downwind State (State B), this time in a ratio of seven to one. Though State Y contributed a relatively larger share of pollution to State A, with respect to State B, State X is the greater offender. Following the proportionality approach with respect to State B would demand that State X reduce its emissions by seven times as much as State Y. Recall, however, that State Y, as just hypothesized, had to effect five times as large a reduction with respect to State A. The Court of Appeals’ proportionality edict with respect to both State A and State B appears to work neither mathematically nor in practical application. Proportionality as to one down-wind State will not achieve proportionality as to others. Quite the opposite. And where, as is generally true, upwind States contribute pollution to more than two downwind receptors, proportionality becomes all the more elusive. Neither the D. C. Circuit nor respondents face up to this problem. The dissent, for its part, strains to give meaning to the D. C. Circuit’s proportionality constraint as applied to a world in which multiple upwind States contribute emissions to multiple downwind locations. In the dissent’s view, upwind States must eliminate emissions by “whatever minimum amount reduces” their share of the overage in each and every one of the downwind States to which they are linked. See post, at 8. In practical terms, this means each upwind State will be required to reduce emissions by the amount necessary to eliminate that State’s largest downwind contribution. The dissent’s formulation, however, does not account for the combined and cumu-lative effect of each upwind State’s reductions on attainment in multiple downwind locations. See ibid. (“Under a proportional-reduction approach, State X would be required to eliminate emissions of that pollutant by whatever minimum amount reduces both State A’s level by 0.2 unit and State B’s by 0.7 unit.” (emphasis added)). The result would be costly overregulation unnecessary to, indeedin conflict with, the Good Neighbor Provision’s goal of attainment.[19] In response, the dissent asserts that EPA will “simply be required to make allowance for” the overregulation caused by its “proportional-reduction” approach. Post, at 11. What criterion should EPA employ to determine which States will have to make those “allowance[s]” and by how much? The dissent admits there are “multiple ways” EPA might answer those questions. Ibid. But proportionality cannot be one of those ways, for theproportional-reduction approach is what led to the overregulation in the first place. And if a nonproportional approach can play a role in setting the final allocation of reduction obligations, then it is hardly apparent why EPA, free to depart from proportionality at the back end, cannot do so at the outset. Persuaded that the Good Neighbor Provision does not dictate the particular allocation of emissions among contributing States advanced by the D. C. Circuit, we must next decide whether the allocation method chosen by EPA is a “permissible construction of the statute.” Chevron, 467 U. S., at 843. As EPA interprets the statute, upwind emissions rank as “amounts [that] . . . contribute significantly to nonattainment” if they (1) constitute one percent or more of a relevant NAAQS in a nonattaining downwind State and (2) can be eliminated under the cost threshold set by the Agency. See 76 Fed. Reg. 48254. In other words, to identify which emissions were to be eliminated, EPA considered both the magnitude of upwind States’ contributions and the cost associated with eliminating them. The Industry respondents argue that, however EPA ultimately divides responsibility among upwind States, the final calculation cannot rely on costs. The Good Neighbor Provision, respondents and the dissent emphasize, “requires each State to prohibit only those ‘amounts’ of air pollution emitted within the State that ‘contribute significantly’ to another State’s nonattaintment.” Brief for Industry Respondents 23 (emphasis added). See also post, at 6. The cost of preventing emissions, they urge, iswholly unrelated to the actual “amoun[t]” of air pollution an upwind State contributes. Brief for Industry Respondents 23. Because the Transport Rule considers costs, respondents argue, “States that contribute identical ‘amounts’ . . . may be deemed [by EPA] to have [made] substantially different” contributions. Id., at 30. But, as just explained, see supra, at 21–22, the Agency cannot avoid the task of choosing which among equal “amounts” to eliminate. The Agency has chosen, sensibly in our view, to reduce the amount easier, i.e., less costly, to eradicate, and nothing in the text of the Good Neighbor Provision precludes that choice. Using costs in the Transport Rule calculus, we agree with EPA, also makes good sense. Eliminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address. Efficient because EPA can achieve the levels of attainment, i.e., of emission reductions, the proportional approach aims to achieve, but at a much lower overall cost. Equita-ble because, by imposing uniform cost thresholds on regulated States, EPA’s rule subjects to stricter regulation those States that have done relatively less in the past to control their pollution. Upwind States that have not yet implemented pollution controls of the same stringency as their neighbors will be stopped from free riding on their neighbors’ efforts to reduce pollution. They will have to bring down their emissions by installing devices of the kind in which neighboring States have already invested. Suppose, for example, that the industries of upwind State A have expended considerable resources installing modern pollution-control devices on their plants. Factories in upwind State B, by contrast, continue to run old, dirty plants. Yet, perhaps because State A is more populous and therefore generates a larger sum of pollution overall, the two States’ emissions have equal effects on downwind attainment. If State A and State B are required to eliminate emissions proportionally (i.e., equally), sources in State A will be compelled to spend far more per ton of reductions because they have already utilized lower cost pollution controls. State A’s sources will also have to achieve greater reductions than would have been required had they not made the cost-effective reductions in the first place. State A, in other words, will be tolled for having done more to reduce pollution in the past.[20] EPA’s cost-based allocation avoids these anomalies. Obligated to require the elimination of only those “amounts” of pollutants that contribute to the nonattainment of NAAQS in downwind States, EPA must decide how to differentiate among the otherwise like contributions of multiple upwind States. EPA found decisive the difficulty of eliminating each “amount,” i.e., the cost incurred in doing so. Lacking a dispositive statutory instruction to guide it, EPA’s decision, we conclude, is a “reasonable” way of filling the “gap left open by Congress.” Chevron, 467 U. S., at 866.[21] C The D. C. Circuit stated two further objections to EPA’s cost-based method of defining an upwind State’s contribution. Once a State was screened in at step one of EPA’s analysis, its emission budget was calculated solely with reference to the uniform cost thresholds the Agency selected at step two. The Transport Rule thus left open thepossibility that a State might be compelled to reduce emissions beyond the point at which every affected downwind State is in attainment, a phenomenon the Court of Appeals termed “over-control.” 696 F. 3d, at 22; see supra, at 12. Second, EPA’s focus on costs did not foreclose, as the D. C. Circuit accurately observed, the possibility that an upwind State would be required to reduce its emissions by so much that the State no longer contributed one per-cent or more of a relevant NAAQS to any downwind State. This would place the State below the mark EPA had set, during the screening phase, as the initial threshold of “significan[ce].” See id., at 20, and n. 13. We agree with the Court of Appeals to this extent: EPA cannot require a State to reduce its output of pollution by more than is necessary to achieve attainment in every downwind State or at odds with the one-percent threshold the Agency has set. If EPA requires an upwind State to reduce emissions by more than the amount necessary to achieve attainment in every downwind State to which it is linked, the Agency will have overstepped its authority, under the Good Neighbor Provision, to eliminate those “amounts [that] contribute . . . to nonattainment.” Nor can EPA demand reductions that would drive an upwind State’s contribution to every downwind State to which it is linked below one percent of the relevant NAAQS. Doing so would be counter to step one of the Agency’s interpretation of the Good Neighbor Provision. See 76 Fed. Reg. 48236 (“[S]tates whose contributions are below th[e] thresholds do not significantly contribute to nonattainment . . . of the relevant NAAQS.”). Neither possibility, however, justifies wholesale invalidation of the Transport Rule. First, instances of “over-control” in particular downwind locations, the D. C. Circuit acknowledged, see 696 F. 3d, at 22, may be incidental to reductions necessary to ensure attainment elsewhere. Because individual upwind States often “contribute significantly” to nonattainment in multiple downwind locations, the emissions reduction required to bring one linked downwind State into attainment may well be large enough to push other linked downwind States over the attainment line.[22] As the Good Neighbor Provision seeks attainment in every downwind State, however, exceeding attainment in one State cannot rank as “over-control” unless unnecessary to achieving attainment in any downwind State. Only reductions unnecessary to downwind attainment anywhere fall outside the Agency’s statutory authority.[23] Second, while EPA has a statutory duty to avoid over-control, the Agency also has a statutory obligation to avoid “under-control,” i.e., to maximize achievement of attainment downwind. For reasons earlier explained, see supra, at 3–4, a degree of imprecision is inevitable in tackling the problem of interstate air pollution. Slight changes in wind patterns or energy consumption, for example, may vary downwind air quality in ways EPA might not have anticipated. The Good Neighbor Provision requires EPA to seek downwind attainment of NAAQS notwithstanding the uncertainties. Hence, some amount of over-control, i.e., emission budgets that turn out to be more demanding than necessary, would not be surprising. Required to balance the possibilities of under-control and over-control, EPA must have leeway in fulfilling its statutory mandate. Finally, in a voluminous record, involving thousands of upwind-to-downwind linkages, respondents point to only a few instances of “unnecessary” emission reductions, and even those are contested by EPA. Compare Brief for Industry Respondents 19 with Reply Brief for Federal Petitioners 21–22. EPA, for its part, offers data, contested by respondents, purporting to show that few (if any) upwind States have been required to limit emissions below the one-percent threshold of significance. Compare Brief for Federal Petitioners 37, 54–55, with Brief for Industry Respondents 40. If any upwind State concludes it has been forced to regulate emissions below the one-percent threshold or beyond the point necessary to bring all downwind States into attainment, that State may bring a particularized, as-applied challenge to the Transport Rule, along with any other as-applied challenges it may have. Cf. Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687 –700 (1995) (approving agency’s reasonable interpretation of statute despite possibility of improper applications); American Hospital Assn. v. NLRB, 499 U. S. 606, 619 (1991) (rejecting facial challenge to National Labor Relations Board rule despite possible arbitrary applications). Satisfied that EPA’s cost-based methodol-ogy, on its face, is not “arbitrary, capricious, or manifestly contrary to the statute,” Chevron, 467 U. S., at 844, we uphold the Transport Rule. The possibility that the rule, in uncommon particular applications, might exceed EPA’s statutory authority does not warrant judicial condemnation of the rule in its entirety. In sum, we hold that the CAA does not command that States be given a second opportunity to file a SIP after EPA has quantified the State’s interstate pollution obligations. We further conclude that the Good Neighbor Provision does not require EPA to disregard costs and consider exclusively each upwind State’s physically proportionate responsibility for each downwind air quality problem. EPA’s cost-effective allocation of emission reductions among upwind States, we hold, is a permissible, work-able, and equitable interpretation of the Good Neighbor Provision. * * * For the reasons stated, the judgment of the United States Court of Appeals for the D. C. Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of these cases.Notes 1 For the rule challenged here, EPA evaluated 2,479 separate link-ages between downwind and upwind States. Brief for Federal Petitioners 6. 2 FIPs and SIPs were introduced in the 1970 version of the Act; the particular deadlines discussed here were added in 1990. See –2423, 42 U. S. C. §§7401(a)(1), 7410(c) (2006 ed.). 3 With respect to each NAAQS addressed by the rule, the one-percent threshold corresponded to levels of 0.15 micrograms per cubic meter (µg/m) for annual PM, 0.35 µg/m for daily PM, and 0.8 parts per billion (ppb) for 8-hour ozone. See 76 Fed. Reg. 48236–48237. 4 If, for example, the NAAQS for ozone were 100 ppb, a contribution of less than 1 ppb to any downwind location would fall outside EPA’s criteria for significance. 5 To illustrate, a technology priced at $5,000 and capable of eliminating two tons of pollution would be stated to “cost” $2,500 per ton. 6 For SO, EPA modeled reductions that would be achieved at cost levels of $500, $1,600, $2,300, $2,800, $3,300, and $10,000 per ton eliminated. See , at 48251–48253. 7 For SO, EPA determined that, for one group of upwind States, all downwind air quality problems would be resolved at the $500 per ton threshold. See , at 48257. For another group of States, however, this level of controls would not suffice. For those States, EPA found that pollution controls costing $2,300 per ton were necessary. See at 48259. 8 In 2014, for example, pollution sources within Texas would be permitted to emit no more than 243,954 tons of SO, subject to variations specified by EPA. See , at 48269 (Table VI.F–1). 9 Similarly, upwind States EPA independently determined to be “interfer[ing] with [the] maintenance” of NAAQS downwind were required to eliminate pollution only to the extent their emissions satisfied both of these criteria. See at48254. 10 These FIPs specified the maximum amount of pollution each in-state pollution source could emit. Sources below this ceiling could sell unused “allocations” to sources that could not reduce emissions to the necessary level as cheaply. See , at 48271–48272. This type of “cap-and-trade” system cuts costs while still reducing pollution to target levels. 11 Three States did challenge EPA’s determinations. See Petition for Review in v. , No. 11–3988 (CA6); Petition for Review in v. , No. 12–1019 (CADC); Notice in v. , No. 11–1427 (CADC). Those challenges were not consolidated with this proceeding, and they remain pending (held in abeyance for these cases) in the Sixth and D. C. Circuits. See Twelfth Joint Status Report in v. , No. 11–3988 (CA6); Order in v. , No. 11–1333 (CADC, May 10, 2013); Order in v. , No. 11–1427 (CADC, May 10, 2013). 12 The State respondents make a second argument we do not reach. They urge that EPA could not impose FIPs on several upwind States whose SIPs had been previously approved by the Agency under CAIR. EPA changed those approvals to disapprovals when it issued the Transport Rule, see 76 Fed. Reg. 48220, and the States assert that the process by which EPA did so was improper. That argument was not passed on by the D. C. Circuit, see 696 F. 3d 7, 31, n. 29 (2012), and we leave it for the Court of Appeals to consider in the first instance on remand. 13 On this point, the dissent argues that it is “beyond responsible debate that the States cannot possibly design FIP-proof SIPs without knowing the EPA-prescribed targets at which they must aim.” , at 18. Many of the State respondents thought otherwise, however, when litigating the matter in v. 213 F. 3d 663 (CADC 2000). See Final Brief for Petitioning States in No. 98–1497 (CADC), p. 34 (“EPA has the responsibility to establish NAAQS,” but without further intervention by EPA, “States [have] the duty and right to develop . . . SIPs . . . to meet those NAAQS.”). See also at37 (“EPA’s role is to determine whether the SIP submitted is ‘adequate’ . . . not to dictate contents of the submittal in the first instance. . . . [E]ach State has the right and the obligation to write a SIP that complies with §[74]10(a)(2), including the ‘good neighbor’ provision.”). 14 In light of the CAA’s “core principle” of cooperative federalism, the dissentbelieves EPA abused its discretion by failing to give States an additional opportunity to submit SIPs in satisfaction of the Good Neighbor Provision. , at 19.But nothing in the statute so restricts EPA. To the contrary, as earlier observed, see , at 16,the plain text of the CAA grants EPA plenary authority to issue a FIP “at time” within the two-year period that begins the moment EPA determines a SIP to be inadequate. §7410(c)(1) (emphasis added). 15 Though we speak here of “EPA’s task,” the Good Neighbor Provision is initially directed to upwind States. As earlier explained, see Part II–B, , only after a State has failed to propose a SIP adequate for compliance with the provision is EPA called upon to act. 16 Because of the uncertainties inherent in measuring interstate air pollution, see at 3–4, reductions of 30 ppb likely are unattainable. See , at 30–31. 17 For simplicity’s sake, the hypothetical assumes that EPA has not required any emission reductions by the downwind State itself. 18 The statutory gap identified also exists in the Good Neighbor Provision’s second instruction. That instruction requires EPA to eliminate amounts of upwind pollution that “interfere with maintenance” of a NAAQS by a downwind State. §7410(a)(2)(D)(i). This mandate contains no qualifier analogous to “significantly,” and yet it entails a delegation of administrative authority of the same character as the one discussed above. Just as EPA is constrained, under the first part of the Good Neighbor Provision, to eliminate only those amounts that “contribute . . . to ,” EPA is limited, by the second part of the provision, to reduce only by “amounts” that “interfere with ,” by just enough to permit an already-attaining State to maintain satisfactory air quality. (Emphasis added.) With multiple upwind States contributing to the maintenance problem, however, EPA confronts the same challenge that the “contribute significantly” mandate creates: How should EPA allocate reductions among multiple upwind States, many of which contribute in amounts sufficient to impede downwind maintenance? Nothing in clause of the Good Neighbor Provision provides the criteria by which EPA is meant to apportion responsibility. 19 To see why, one need only slightly complicate the world envisioned by the dissent. Assume the world is made up of only four States—two upwind (States X and Y), and two downwind (States A and B). Suppose also, as the dissent allows, see , at 9, that the reductions State X must make to eliminate its share of the amount by which State A is in nonattainment are more than necessary for State X to eliminate its share of State B’s nonattainment. As later explained, see , at 29–30, this kind of “over-control,” we agree with the dissent, is acceptable under the statute. Suppose, however, that State Y also contributes to pollution in both State A and State B such that the reductions it must make to eliminate its proportion of State B’s overage exceed the reductions it must make to bring State A into attainment. In this case, the dissent would have State X reduce by just enough to eliminate its share of State A’s nonattainment and more than enough to eliminate its share of State B’s overage. The converse will be true as to State Y: Under the dissent’s approach, State Y would have to reduce by the “minimum” necessary to eliminate its proportional share of State B’s nonattainment and more than enough to eliminate its proportion of State A’s overage. The result is that the total amount by which both States X and Y are required to reduce will exceed what is necessary for attainment (inboth State A and State B). Over-control thus unnecessary to achieving attainment in all involved States is impermissible under the Good Neighbor Provision. See , at 30, n. 23. The problem would worsen were the hypothetical altered to include more than two downwind States and two upwind States, the very real circumstances EPA must address. 20 The dissent’s approach is similarly infirm. It, too, would toll those upwind States that have already invested heavily in means to reduce the pollution their industries cause, while lightening the burden on States that have done relatively less to control pollution emanating from local enterprises. 21 The dissent, see at12–13, relies heavily on our decision in v. , . In ,we held that the relevant text of the CAA “unambiguously bars” EPA from considering costs when determining a NAAQS. at 471. Section 7409(b)(1) commands EPA to set NAAQS at levels “requisite to protect the public health” with “an adequate margin of safety.” This mandate, we observed in , was “absolute,” and precluded any other consideration (cost) in the NAAQS calculation. , at 465 (internal quotation marks omitted). Not so of the Good Neighbor Provision, which grants EPA discretion to eliminate “amounts [of pollution that] . . . contribute significantly to nonattainment” downwind. On the particular “amounts” that should qualify for elimination, the statute is silent. Unlike the provision at issue in , which provides express criteria by which EPA is to set NAAQS, the Good Neighbor Provision, as earlier explained, fails to provide metric by which EPA can differentiate among the contributions of multiple upwind States. See at 21–22. 22 The following example, based on the record, is offered in Brief for Respondent Calpine Corp. et al. in Support of Petitioners 52–54. Ohio, West Virginia, Pennsylvania, and Indiana each contribute in varying amounts to five different nonattainment areas in three downwind States. at52 Implementation of the Transport Rule, EPA modeling demonstrates, will bring three of these five areas into attainment by a comfortable margin, and a fourth only barely. See at 53, fig. 2. The fifth downwind receptor, however, will still fall short of attainment despite the reductions the rule requires. See But if EPA were to lower the emission reductions required of the upwind States to reduce over-attainment in the first three areas, the area barely achieving attainment would no longer do so, and the area still in nonattainment would fall even further behind. Thus, “over-control” of the first three downwind receptors is essential to the attainment achieved by the fourth and to the fifth’s progress toward that goal. 23 The dissentsuggests that our qualification of the term “over-control” is tantamount to an admission that “nothing stands in the way of [a] proportional-reduction approach.” at 9. Not so. Permitting “over-control” as to one State for the purpose of achieving attainment in another furthers the stated goal of the Good Neighbor Provision, attainment of NAAQS. By contrast, a proportional-reduction scheme is neither necessary to achieve downwind attainment, nor mandated by the terms of the statute, as earlier discussed, see at 21–25. Permitting “over-control” for the purpose of achieving proportionality would thus contravene the clear limits the statute places on EPA’s good neighbor authority, to eliminate only those “amounts” of upwind pollutants essential to achieving attainment downwind.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus ENVIRONMENTAL PROTECTION AGENCY et al. v. EME HOMER CITY GENERATION, L. P., et al. certiorari to the united states court of appeals for the district of columbia circuit No. 12–1182. Argued December 10, 2013—Decided April 29, 2014[1] Congress and the Environmental Protection Agency (EPA or Agency) have, over the course of several decades, made many efforts to deal with the complex challenge of curtailing air pollution emitted in upwind States, but causing harm in other, downwind States. As relevant here, the Clean Air Act (CAA or Act) directs EPA to establish national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health. 42 U. S. C. §§7408, 7409. Once EPA settles on a NAAQS, the Agency must designate “nonattainment” areas, i.e., locations where the concentration of a regulated pollutant exceeds the NAAQS. §7407(d). Each State must submit a State Implementation Plan, or SIP, to EPA within three years of any new or revised NAAQS. §7410(a)(1). From the date EPA determines that a State SIP is inadequate, the Agency has two years to promulgate a Federal Implementation Plan, or FIP. §7410(c)(1). Among other components, the CAA mandates SIP compliance with the Good Neighbor Provision, which requires SIPs to “contain adequate provisions . . . prohibiting . . . any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any . . . [NAAQS].” §7410(a)(2)(D)(i). Several times over the past two decades, EPA has attempted to delineate the Good Neighbor Provision’s scope by identifying when upwind States “contribute significantly” to nonattainment downwind. The D. C. Circuit found fault with the Agency’s 2005 attempt, the Clean Air Interstate Rule, or CAIR, which regulated both nitrogen oxide (NOX) and sulfur dioxide (SO2) emissions, the gasses at issue here. The D. C. Circuit nevertheless left CAIR temporarily in place, while encouraging EPA to act with dispatch in dealing with problems the court had identified. EPA’s response to that decision is the Cross-State Air Pollution Rule (Transport Rule), which curbs NOX and SO2 emissions in 27 upwind States to achieve downwind attainment of three NAAQS. Under the Transport Rule, an upwind State “contribute[d] significantly” to downwind nonattainment to the extent its exported pollution both (1) produced one percent or more of a NAAQS in at least one downwind State and (2) could be eliminated cost-effectively, as determined by EPA. Upwind States are obliged to eliminate only emissions meeting both of these criteria. Through complex modeling, EPA created an annual emissions “budget” for each regulated State upwind, representing the total quantity of pollution an upwind State could produce in a given year under the Transport Rule. Having earlier determined each regulated State’s SIP to be inadequate, EPA, contemporaneous with the Transport Rule, promulgated FIPs allocating each State’s emissions budgets among its in-state pollution sources. A group of state and local governments (State respondents), joined by industry and labor groups (Industry respondents), petitioned for review of the Transport Rule in the D. C. Circuit. The court vacated the rule in its entirety, holding that EPA’s actions exceeded the Agency’s statutory authority in two respects. Acknowledging that EPA’s FIP authority is generally triggered when the Agency disapproves a SIP, the court was nevertheless concerned that States would be incapable of fulfilling the Good Neighbor Provision without prior EPA guidance. The court thus concluded that EPA must give States a reasonable opportunity to allocate their emission budgets before issuing FIPs. The court also found the Agency’s two-part interpretation of the Good Neighbor Provision unreasonable, concluding that EPA must disregard costs and consider exclusively each upwind State’s physically proportionate responsibility for air quality problems downwind. Held: 1. The CAA does not command that States be given a second opportunity to file a SIP after EPA has quantified the State’s interstate pollution obligations. . (a) The State respondents do not challenge EPA’s disapproval of any particular SIP. Instead, they argue that, notwithstanding these disapprovals, the Agency was still obliged to grant upwind States anadditional opportunity to promulgate adequate SIPs after EPA had set the State’s emission budget. This claim does not turn on the validity of the prior SIP disapprovals, but on whether the CAA requires EPA do more than disapprove a SIP to trigger the Agency’s authority to issue a FIP. . (b) The CAA’s plain text supports the Agency: Disapproval of a SIP, without more, triggers EPA’s obligation to issue a FIP. The statute sets precise deadlines for the States and EPA. Once EPA issues any new or revised NAAQS, a State “shall” propose a SIP within three years, 42 U. S. C. §7410(a)(1), and that SIP “shall” include, inter alia, provisions adequate to satisfy the Good Neighbor Provision, §7410(a)(2). If the EPA finds a SIP inadequate, the Agency has a statutory duty to issue a FIP “at any time” within two years. §7410(c)(1). However sensible the D. C. Circuit’s exception to this strict time prescription may be, a reviewing court’s “task is to apply the text [of the statute], not to improve upon it.” Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp., 493 U.S. 120, 126. Nothing in the Act differentiates the Good Neighbor Provision from the several other matters a State must address in its SIP. Nor does the Act condition the duty to promulgate a FIP on EPA’s having first quantified an upwind State’s good neighbor obligations. By altering Congress’ SIP and FIP schedule, the D. C. Circuit allowed a delay Congress did not order and placed an information submission obligation on EPA Congress did not impose. . (c) The fact that EPA had previously accorded upwind States a chance to allocate emission budgets among their in-state sources does not show that the Agency acted arbitrarily by refraining to do so here. EPA retained discretion to alter its course provided it gave a reasonable explanation for doing so. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 42. Here, the Agency had been admonished by the D. C. Circuit to act with dispatch in amending or replacing CAIR. Endeavoring to satisfy that directive, EPA acted speedily, issuing FIPs and the Transport Rule contemporaneously. . 2. EPA’s cost-effective allocation of emission reductions among upwind States is a permissible, workable, and equitable interpretation of the Good Neighbor Provision. . (a) Respondents’ attack on EPA’s interpretation of the Good Neighbor Provision is not foreclosed by §7607(d)(7)(B), which provides that “[o]nly an objection to a rule . . . raised with reasonable specificity during the period for public comment . . . may be raised during judicial review.” Even assuming that respondents failed to object to the Transport Rule with “reasonable specificity,” that lapse is not jurisdictional. Section 7607(d)(7)(B) is a “mandatory,” but not“jurisdictional,” rule, see Arbaugh v. Y & H Corp., 546 U.S. 500, 510, which speaks to a party’s procedural obligations, not a court’s authority, see Kontrick v. Ryan, 540 U.S. 443, 455. Because EPA did not press this argument unequivocally before the D. C. Circuit, it does not pose an impassable hindrance to this Court’s review. . (b) This Court routinely accords dispositive effect to an agency’s reasonable interpretation of ambiguous statutory language. The Good Neighbor Provision delegates authority to EPA at least as certainly as the CAA provisions involved in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837. EPA’s authority to reduce upwind pollution extends only to those “amounts” of pollution that “contribute significantly to nonattainment” in downwind States. §7410(a)(2)(D)(i). Because a downwind State’s excess pollution is often caused by multiple upwind States, however, EPA must address how to allocate responsibility among multiple contributors. The Good Neighbor Provision does not dictate a method of apportionment. Nothing in the provision, for example, directs the proportional allocation method advanced by the D. C. Circuit, a method that works neither mathematically nor in practical application. Under Chevron, Congress’ silence effectively delegates authority to EPA to select from among reasonable options. See United States v. Mead Corp., 533 U.S. 218, 229. EPA’s chosen allocation method is a “permissible construction of the statute.” Chevron, 467 U. S., at 843. The Agency, tasked with choosing which among equal “amounts” to eliminate, has chosen sensibly to reduce the amount easier, i.e., less costly, to eradicate. The Industry respondents argue that the final calculation cannot rely on costs, but nothing in the Good Neighbor Provision’s text precludes that choice. And using costs in the Transport Rule calculus is an efficient and equitable solution to the allocation problem the Good Neighbor Provision compels the Agency to address. Efficient because EPA can achieve the same levels of attainment, i.e., of emission reductions, the proportional approach aims to achieve, but at a much lower overall cost. Equitable because, by imposing uniform cost thresholds on regulated States, EPA’s rule subjects to stricter regulation those States that have done less in the past to control their pollution. . (c) Wholesale invalidation of the Transport Rule is not justified by either of the D. C. Circuit’s remaining objections: that the Transport Rule leaves open the possibility that a State might be compelled to reduce emissions beyond the point at which every affected downwind State is in attainment, so-called “over-control”; and that EPA’s use of costs does not foreclose the possibility that an upwind State would be required to reduce its emissions by so muchthat the State would be placed below the one-percent mark EPA set as the initial threshold of “significan[ce].” First, instances of “over-control” in particular downwind locations may be incidental to reductions necessary to ensure attainment elsewhere. As the Good Neighbor Provision seeks attainment in every downwind State, however, exceeding attainment in one State cannot rank as “over-control” unless unnecessary to achieving attainment in any downwind State. Second, the EPA must have leeway in fulfilling its statutory mandate to balance the possibilities of over-control and “under-control,” i.e., to maximize achievement of attainment downwind. Finally, in a voluminous record, involving thousands of upwind-to-downwind linkages, respondents point to only a few instances of “unnecessary” emission reductions, and even those are contested by EPA. . 696 F.3d 7, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. Alito, J., took no part in the consideration or decision of the cases. Notes 1 Together with No. 12–1183, American Lung Association et al. v. EME Homer City Generation, L. P., et al., also on certiorari to the same court.

To tackle the problem of air pollution emitted in one State but causing harm in other States, Congress included a Good Neighbor Provision in the Clean Air Act (Act), which directs States to prohibit in-state sources from emitting any air pollutant in amounts that will significantly contribute to downwind States' nonattainment or interfere with maintenance of any EPA-promulgated national air quality standard. The Act then requires States to establish national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health, and each State must submit a State Implementation Plan, or SIP, to EPA within three years of any new or revised NaaQS. If EPA determines that a State has failed to submit an adequate SIP (either in whole or in part), the Act requires the agency to promulgate a Federal Implementation Plan (FIP) within two years of EPA's determina-tion, unless the State corrects the deficiency before a FIP is issued. EPA adopted the Cross-State Air Pollution Rule (CAIR), which calls for consideration of costs, among other factors, when determining the emission reductions an upwind State must make to improve air quality in polluted downwind areas. In its entirety, the Court of Appeals vacated the rule in reliance on EPA, holding, inter alia, that, in order to require EPA to consider only each upwind state's physically proportionate responsibility for each downwind State, that reading is demanded so that no State will be required to decrease its emissions by more than its ratable share of downwind-state pollution. Held: 1. EPA exceeded its statutory authority in two respects. By promulgating FIPs before giving States a meaningful opportunity to adopt their own implementation plans, EPA had upset the CAA's division of responsibility between the States and the Federal Government. . (a) The plain text of the Act grants EPA plenary authority to issue an FIP at time within the two-year period that begins the moment EPA determines a SIP to be inadequate. Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. ___ (1984), and nothing in the Act so restricts EPA. Rather, the Act speaks without reservation. Once EPA has calculated emission budgets, it is triggered at the moment the Agency disapproves the SIP. Thus, a State must issue after EPA has quantified the States' good neighbor obligations in an emission budget and given the States a reasonable opportunity to meet those obligations in SIPs. P.. (b) EPA cannot require a State to reduce its output of pollution by more than is necessary to achieve attainment in every Downwind State or at odds with the one-percent threshold set by the Agency. Even assuming, without deciding, that respondents did not meet the Act's reasonable specificity requirement during the comment period, this claim does not depend on the validity of the prior SIP disapprovals, and does not constitute improper collateral attacks on EPA.. 2. The Transport Rule does not conflict with the Act. EPA, by the time it issued the Transport Rule, had determined that each of the regulated upwind States had failed to satisfy the Good Neighbor provision, and, in view of the uncertainties inherent in measuring interstate air pollution, could wait up to two years to issue the FIP, during which time the State can determine that pollution to more than two downwind receptors in a given State may be caused by the same level of pollution as to others. Moreover, EPA is not obliged to wait two years or postpone its action even a single day: The Act therefore callsupon the Agency to address a thorny causation problem: How should EPA allocate among multiple contributing States among the contributing States in the process of reducing upwind pollution. Although EPA is required to allocate responsibility for emission reductions among the three States, it does not have to do so by itself. EPA is free to depart from proportionality at the back end of its obligation to provide specific metrics to States before they undertake to fulfill their Good Neighbor obligations.. Pp. 468 F. 3d 7, reversed and remanded. JUSTICE O'CONNOR, joined by REHNQUIST, C.J., and WHITE, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, BLACKMUN, and STEVENS, JJ. joined, post, p..

2013_12-1200

https://www.oyez.org/cases/2013/12-1200

. In Stern v. Marshall, 564 U. S. ___ (2011), this Court held that even though bankruptcy courts are statutorily authorized to enter final judgment on a class of bankruptcy-related claims, Article III of the Constitution prohibits bankruptcy courts from finally adjudicating certain of those claims. Stern did not, however, decide how bankruptcy or district courts should proceed when a “Stern claim” is identified. We hold today that when, under Stern’s reasoning, the Constitution does not permit a bankruptcy court to enter final judgment on a bankruptcy-related claim, the relevant statute nevertheless permits a bankruptcy court to issue proposed findings of fact and conclusions of law to be reviewed de novo by the district court. Because the District Court in this case conducted the de novo review that petitioner demands, we affirm the judgment of the Court of Appeals upholding the District Court’s decision. I Nicolas Paleveda and his wife owned and operated two companies—Aegis Retirement Income Services, Inc. (ARIS), and Bellingham Insurance Agency, Inc. (BIA). By early 2006, BIA had become insolvent, and on January 31, 2006, the company ceased operation. The next day, Paleveda used BIA funds to incorporate Executive Benefits Insurance Agency, Inc. (EBIA), petitioner in this case. Paleveda and others initiated a scheme to transfer assets from BIA to EBIA. The assets were deposited into an account held jointly by ARIS and EBIA and ultimately credited to EBIA at the end of the year. On June 1, 2006, BIA filed a voluntary Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Washington. Peter Arkison, the bankruptcy trustee and respondent in this case, filed a complaint in the same Bankruptcy Court against EBIA and others. As relevant here, the complaint alleged that Paleveda used various methods to fraudulently convey BIA assets to EBIA.[1] EBIA filed an answer and denied many of the trustee’s allegations. After some disagreement as to whether the trustee’s claims should continue in the Bankruptcy Court or instead proceed before a jury in Federal District Court, the trustee filed a motion for summary judgment against EBIA in the Bankruptcy Court. The Bankruptcy Court granted summary judgment for the trustee on all claims, including the fraudulent conveyance claims. EBIA then appealed that determination to the District Court. The District Court conducted de novo review, affirmed the Bankruptcy Court’s decision, and entered judgment for the trustee. EBIA appealed to the United States Court of Appeals for the Ninth Circuit. After EBIA filed its opening brief, this Court decided Stern, supra. In Stern, we held that Article III of the Constitution did not permit a bankruptcy court to enter final judgment on a counterclaim for tortious interference, id., at ___, even though final adjudication of that claim by the Bankruptcy Court was authorized by statute, see Part II–B, infra.[2] In light of Stern, EBIA moved to dismiss its appeal in the Ninth Circuit for lack of jurisdiction, contending that Article III did not permit Congress to vest authority in a bankruptcy court to finally decide the trustee’s fraudulent conveyance claims. The Ninth Circuit rejected EBIA’s motion and affirmed the District Court. In re Bellingham Ins. Agency, Inc., 702 F. 3d 553 (2012). As relevant here, the court held that Stern, supra, and Granfinanciera, S. A. v. Nordberg, 492 U. S. 33 (1989) ,[3] taken together, lead to the conclusion that Article III does not permit a bankruptcy court to enter final judgment on a fraudulent conveyance claim against a noncreditor unless the parties consent. 702 F. 3d, at 565. The Ninth Circuit concluded that EBIA had impliedly consented to the Bankruptcy Court’s jurisdiction, and that the Bankruptcy Court’s adjudication of the fraudulent conveyance claim was therefore permissible. Id., at 566, 568. The Court of Appeals also observed that the Bankruptcy Court’s judgment could instead be treated as proposed findings of fact and conclusions of law, subject to de novo review by the District Court. Id., at 565–566. We granted certiorari, 570 U. S. ___ (2013). II In Stern, we held that Article III prohibits Congress from vesting a bankruptcy court with the authority to finally adjudicate certain claims. 564 U. S., at ___. But we did not address how courts should proceed when they encounter one of these “Stern claims”—a claim designated for final adjudication in the bankruptcy court as a statu-tory matter, but prohibited from proceeding in that way as a constitutional matter.[4] As we explain in greater detail below, when a bankruptcy court is presented with such a claim, the proper courseis to issue proposed findings of fact and conclusions of law. The district court will then review the claim de novo and enter judgment. This approach accords with the bankruptcy statute and does not implicate the constitutional defect identified by Stern. A We begin with an overview of modern bankruptcy legislation. Prior to 1978, federal district courts could refer matters within the traditional “summary jurisdiction” of bankruptcy courts to specialized bankruptcy referees.[5] See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 53 (1982) (plurality opinion). Summary jurisdiction covered claims involving “property in the actual or constructive possession of the [bankruptcy] court,” ibid., i.e., claims regarding the apportionment of the existing bankruptcy estate among creditors. See Brubaker, A “Summary” Statutory and Constitutional Theory of Bankruptcy Judges’ Core Jurisdiction After Stern v. Marshall, 86 Am. Bankr. L. J. 121, 124 (2012). Proceedings to augment the bankruptcy estate, on the other hand, implicated the district court’s plenary jurisdiction and were not referred to the bankruptcy courts absent both parties’ consent. See MacDonald v. Plymouth County Trust Co., 286 U. S. 263, 266 (1932) ; see also Brubaker, supra, at 128. In 1978, Congress enacted sweeping changes to the federal bankruptcy laws. See 92Stat. 2549. The Bankruptcy Reform Act eliminated the historical distinction between “ ‘summary’ ” jurisdiction belonging to bankruptcy courts and “ ‘plenary’ ” jurisdiction belonging to either a district court or an appropriate state court. Northern Pipeline, supra, at 54 (plurality opinion); see also 1 W. Norton & W. Norton Bankruptcy Law and Practice §4:12, p. 4–44 (3d ed. 2013). Instead, the 1978 Act mandated that bankruptcy judges “shall exercise” jurisdiction over “all civil proceedings arising under title 11 or arising in or related to cases under title 11.” 28 U. S. C. §§1471(b)–(c) (1976 ed., Supp. IV). Under the 1978 Act, bankruptcy judges were “vested with all of the ‘powers of a court of equity, law, and admiralty,’ ” with only a few limited exceptions. Northern Pipeline, 458 U. S., at 55 (plurality opinion) (quoting §1481). Notwithstanding their expanded jurisdiction and authority, these bankruptcy judges were not afforded the protections of Article III—namely, life tenure and a salary that may not be diminished. Id.,at 53. In Northern Pipeline, this Court addressed whether bankruptcy judges under the 1978 Act could “constitutionally be vested with jurisdiction to decide [a] state-law contract claim” against an entity not otherwise a party to the proceeding. Id., at 53, 87, n. 40. The Court concluded that assignment of that claim for resolution by the bankruptcy judge “violates Art. III of the Constitution.” Id., at 52, 87 (plurality opinion); see id., at 91 (Rehnquist, J., concurring in judgment). The Court distinguished between cases involving so-called “public rights,” which may be removed from the jurisdiction of Article III courts, and cases involving “private rights,” which may not. See id., at 69–71 (plurality opinion); id., at 91 (Rehnquist, J., concurring in judgment). Specifically, the plurality noted that “the restructuring of debtor-creditor relations, which is at the core of the federal bankruptcy power, must be distinguished from the adjudication of state-created private rights,” which belong in an Article III court. Id., at 71–72, and n. 26. B Against that historical backdrop, Congress enacted the Bankruptcy Amendments and Federal Judgeship Act of 1984—the Act at issue in this case. See 28 U. S. C. §151 et seq. Under the 1984 Act, federal district courts have “original and exclusive jurisdiction of all cases under title 11,” §1334(a), and may refer to bankruptcy judges any “proceedings arising under title 11 or arising in or related to a case under title 11,” §157(a).[6] Bankruptcy judges serve 14-year terms subject to removal for cause, §§152(a)(1), (e), and their salaries are set by Congress, §153(a). The 1984 Act largely restored the bifurcated jurisdictional scheme that existed prior to the 1978 Act. The 1984 Act implements that bifurcated scheme by dividing all matters that may be referred to the bankruptcy courtinto two categories: “core” and “non-core” proceedings. See generally §157.[7] It is the bankruptcy court’s responsibility to determine whether each claim before it is core or non-core. §157(b)(3); cf. Fed. Rule Bkrtcy. Proc. 7012. For core proceedings, the statute contains a nonexhaustive list of examples, including—as relevant here—“proceedings to determine, avoid, or recover fraudulent conveyances.” §157(b)(2)(H). The statute authorizes bankruptcy judges to “hear and determine” such claims and “enter appropriate orders and judgments” on them. §157(b)(1). A final judgment entered in a core proceeding is appealable to the district court, §158(a)(1), which reviews the judgment under traditional appellate standards, Rule 8013. As for “non-core” proceedings—i.e., proceedings that are “not . . . core” but are “otherwise related to a case under title 11”—the statute authorizes a bankruptcy court to “hear [the] proceeding,” and then “submit proposed findings of fact and conclusions of law to the district court.” §157(c)(1). The district court must then review those proposed findings and conclusions de novo and enter any final orders or judgments. Ibid. There is one statutory exception to this rule: If all parties “consent,” the statute permits the bankruptcy judge “to hear and determine and to enter appropriate orders and judgments” as if the proceeding were core. §157(c)(2). Put simply: If a matter is core, the statute empowers the bankruptcy judge to enter final judgment on the claim, subject to appellate review by the district court. If a matter is non-core, and the parties have not consented to final adjudication by the bankruptcy court, the bankruptcy judge must propose findings of fact and conclusions of law. Then, the district court must review the proceeding de novo and enter final judgment. C Stern v. Marshall, 564 U. S. ___, confronted an underlying conflict between the 1984 Act and the requirements of Article III. In particular, Stern considered a constitutional challenge to the statutory designation of a particular claim as “core.” The bankrupt in that case had filed a common-law counterclaim for tortious interference against a creditor to the estate. Id., at ___. Section 157(b)(2)(C), as added by the 1984 Act, lists “counterclaims by the estate against persons filing claims against the estate” as a core proceeding, thereby authorizing the bankruptcy court to adjudicate the claim to final judgment. See supra this page. The respondent in Stern objected that Congress had violated Article III by vesting the power to adjudicate the tortious interference counterclaim in bankruptcy court. Stern, 564 U. S., at ___. We agreed. Id., at ___. In that circumstance, we held, Congress had improperly vested the Bankruptcy Court with the “ ‘ judicial Power of the United States,’ ” just as in Northern Pipeline. 564 U. S., at ___, ___ (slip op., at 21, 38). Because “[n]o ‘public right’ exception excuse[d] the failure to comply with Article III,” we concluded that Congress could not confer on the Bankruptcy Court the authority to finally decide the claim. Id., at ___. (slip op., at 21). III Stern made clear that some claims labeled by Congress as “core” may not be adjudicated by a bankruptcy court in the manner designated by §157(b). Stern did not, how-ever, address how the bankruptcy court should proceed under those circumstances. We turn to that question now. The Ninth Circuit held that the fraudulent conveyance claims at issue here are Stern claims—that is, proceedings that are defined as “core” under §157(b) but may not, as a constitutional matter, be adjudicated as such (at least in the absence of consent, see n. 4, supra. See 702 F. 3d, at 562. Neither party contests that conclusion. The lower courts, including the Ninth Circuit in this case, have described Stern claims as creating a statutory “gap.” See, e.g., 702 F. 3d, at 565. By definition, a Stern claim may not be adjudicated to final judgment by the bankruptcy court, as in a typical core proceeding. But the alternative procedure, whereby the bankruptcy court submits proposed findings of fact and conclusions of law, applies only to non-core claims. See §157(c)(1). Because §157(b) does not explicitly authorize bankruptcy judges to submit proposed findings of fact and conclusions of law in a core proceeding, the argument goes, Stern created a “gap” in the bankruptcy statute. See 702 F. 3d, at 565. That gap purportedly renders the bankruptcy court powerless to act on Stern claims, see Brief for Petitioner 46–48, thus requiring the district court to hear all Stern claims in the first instance. We disagree. The statute permits Stern claims to proceed as non-core within the meaning of §157(c). In particular, the statute contains a severability provision that accounts for decisions, like Stern, that invalidate certain applications of the statute: “If any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act, or the application of that provision to persons or circumstances other than those as to which it is held invalid, is not affected thereby.” 98Stat. 344, note following 28 U. S. C. §151. The plain text of this severability provision closes the so-called “gap” created by Stern claims. When a court identifies a claim as a Stern claim, it has necessarily “held invalid” the “application” of §157(b)—i.e., the “core” label and its attendant procedures—to the litigant’s claim. Note following §151. In that circumstance, the statute instructs that “the remainder of th[e] Act . . . is not affected thereby.” Ibid. That remainder includes §157(c), which governs non-core proceedings. With the “core” category no longer available for the Stern claim at issue, we look to §157(c)(1) to determine whether the claim may be adjudicated as a non-core claim—specifically, whether it is “not a core proceeding” but is “otherwise related to a case under title 11.” If the claim satisfies the criteria of §157(c)(1), the bankruptcy court simply treats the claims as non-core: The bankruptcy court should hear the proceeding and submit proposed findings of fact and conclusions of lawto the district court for de novo review and entry ofjudgment. The conclusion that the remainder of the statute may continue to apply to Stern claims accords with our general approach to severability. We ordinarily give effect to the valid portion of a partially unconstitutional statute so long as it “remains ‘ “fully operative as a law,” ’ ” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 509 (2010) (quoting New York v. United States, 505 U. S. 144, 186 (1992) ), and so long as it is not “ ‘evident’ ” from the statutory text and context that Congress would have preferred no statute at all, 561 U. S., at 509 (quoting Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987) ). Neither of those concerns applies here. Thus, §157(c) may be applied naturally to Stern claims. And, EBIA has identified “nothing in the statute’s text or historical context” that makes it “evident” that Congress would prefer to suspend Stern claims in limbo. 561 U. S., at 509.[8] IV A Now we must determine whether the procedures set forth in §157(c)(1) apply to the fraudulent conveyance claims at issue in this case. The Court of Appeals held, and we assume without deciding, that the fraudulent conveyance claims in this case are Stern claims. See Part III, supra. For purposes of this opinion, the “application” of both the “core” label and the procedures of §157(b) to the trustee’s claims has therefore been “held invalid.” Note following §151. Accordingly, we must decide whether the fraudulent conveyance claims brought by the trustee are within the scope of §157(c)(1)—that is, “not . . . core” proceedings but “otherwise related to a case under title 11.” We hold that this language encompasses the trustee’s claims of fraudulent conveyance. First, the fraudulent conveyance claims in this case are “not . . . core.” The Ninth Circuit held—and no party disputes—that Article III does not permit these claims to be treated as “core.” See Part III, supra. Second, the fraudulent conveyance claims are self-evidently “related to a case under title 11.” At bottom, a fraudulent conveyance claim asserts that property that should have been part of the bankruptcy estate and therefore available for distribution to creditors pursuant to Title 11 was improperly removed. That sort of claim is “related to a case under title 11” under any plausible construction of the statutory text, and no party contends otherwise. See, e.g., Celotex Corp. v. Edwards, 514 U. S. 300 , n. 5, 308 (1995) (“Proceedings ‘related to’ the bankruptcy include . . . suits between third parties which have an effect on the bankruptcy estate”). Accordingly, because these Stern claims fit comfortably within the category of claims governed by §157(c)(1), the Bankruptcy Court would have been permitted to follow the procedures required by that provision, i.e., to submit proposed findings of fact and conclusions of law to the District Court to be reviewed de novo. B Although this case did not proceed in precisely that fashion, we affirm nonetheless. A brief procedural history of the case helps explain why. As noted, §157 permits a bankruptcy court to adjudicate a claim to final judgment in two circumstances—in core proceedings, see §157(b), and in non-core proceedings “with the consent of all the parties,” §157(c)(2). In this case, the Bankruptcy Court entered judgment in favor of the bankruptcy trustee without specifying in its order whether it was acting pursuant to §157(b) (core) or §157(c)(2) (non-core with consent). EBIA immediately appealed to the District Court, see §158, but it did not argue that the Bankruptcy Court lacked constitutional authority to grant summary judgment. As a result, the District Court did not analyze whether there was a Stern problem and did not, as some district courts have done, relabel the bankruptcy order as mere proposed findings of fact and conclusions of law. See, e.g., In re Parco Merged Media Corp., 489 B. R. 323, 326 (Me. 2013) (collecting cases). The District Court did, however, review de novo the Bankruptcy Court’s grant of summary judgment for the trustee—a legal question—and issued a reasoned opinion affirming the Bankruptcy Court. The District Court then separately entered judgment in favor of the trustee. See 28 U. S. C. §1334(b) (“[T]he district courts shall have original but not exclusive jurisdiction of all civil proceedings . . . related to cases under title 11”). EBIA now objects on constitutional grounds to the Bankruptcy Court’s disposition of the fraudulent conveyance claims. EBIA contends that it was constitutionally entitled to review of its fraudulent conveyance claims by an Article III court regardless of whether the parties consented to adjudication by a bankruptcy court. Brief for Petitioner 25–27. In an alternative argument, EBIA asserts that even if the Constitution permitted the Bankruptcy Court to adjudicate its claim with the consent of the parties, it did not in fact consent. Id., at 38. In light of the procedural posture of this case, however, we need not decide whether EBIA’s contentions are correct on either score. At bottom, EBIA argues that it was entitled to have an Article III court review de novo and enter judgment on the fraudulent conveyance claims asserted by the trustee. In effect, EBIA received exactly that. The District Court conducted de novo review of the summary judgment claims, concluding in a written opinion that there were no disputed issues of material fact and that the trustee was entitled to judgment as a matter of law. In accordance with its statutory authority over matters related to the bankruptcy, see §1334(b), the District Court then separately entered judgment in favor of the trustee. EBIA thus received the same review from the District Court that it would have received if the Bankruptcy Court had treated the fraudulent conveyance claims as non-core proceedings under §157(c)(1). In short, even if EBIA is correct that the Bankruptcy Court’s entry of judgment was invalid, the District Court’s de novo review and entry of its own valid final judgment cured any error. Cf. Carter v. Kubler, 320 U. S. 243, 248 (1943) (bankruptcy commissioner’s error was cured after the District Court “madean independent and complete review of the conflicting evidence”). Accordingly, we affirm the judgment of the Court of Appeals. It is so ordered.Notes 1 The trustee asserted claims of fraudulent conveyance under , and under state law, Wash. Rev. Code, ch. 19.40 (2012). 2 As we explain below, see Part II–B, ,the statutory schemeat issue both in and in this case grants bankruptcy courts the authority to “hear and determine” and “enter appropriate orders and judgments” in “core” proceedings. . The statute lists counterclaims like the one brought in as “core” claims. §157(b)(2)(C). 3 held that a fraudulent conveyance claim under Title 11 is not a matter of “public right” for purposes of Article III, 492 U. S., at 55, and that the defendant to such a claim is entitled to a jury trial under the , , at 64. 4 Because we conclude that EBIA received the review and entry of judgment to which it claims constitutional entitlement, see Part IV–B, this case does not require us to address whether EBIA in fact consented to the Bankruptcy Court’s adjudication of a claim and whether Article III permits a bankruptcy court, with the consent of the parties, to enter final judgment on a claim. We reserve that question for another day. 5 Bankruptcy referees were designated “judges” in 1973. See v. , n. 2 (1982) (plurality opinion). 6 In addition, district courts may also withdraw such matters from the bankruptcy courts for “cause shown.” §157(d). 7 In using the term “core,” Congress tracked the plurality’s use of the same term as a description of those claims that fell within the scope of the historical bankruptcy court’s power. See 458 U. S., at 71 (“[T]he restructuring of debtor-creditor relations, which is at the of the federal bankruptcy power, must be distinguished from the adjudication of state-created private rights . . .” (emphasis added)). 8 To the contrary, we noted in that removal of claims from core bankruptcy jurisdiction does not “meaningfully chang[e] the division of labor in the current statute.” 564 U. S., at ___ (slip op., at 37). Accepting EBIA’s contention that district courts are required to hear all claims in the first instance, see Brief for Petitioner 46–48, would dramatically alter the division of responsibility set by Congress.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus EXECUTIVE BENEFITS INSURANCE AGENCY v. ARKISON, CHAPTER 7 TRUSTEE OF ESTATE OF BELLINGHAM INSURANCE AGENCY, INC. certiorari to the united states court of appeals for the ninth circuit No. 12–1200. Argued January 14, 2014—Decided June 9, 2014 Bellingham Insurance Agency, Inc. (BIA), filed a voluntary chapter 7 bankruptcy petition. Respondent Peter Arkison, the bankruptcy trustee, filed a complaint in the Bankruptcy Court against petitioner Executive Benefits Insurance Agency (EBIA) and others alleging the fraudulent conveyance of assets from BIA to EBIA. The Bankruptcy Court granted summary judgment for the trustee. EBIA appealed to the District Court, which affirmed the Bankruptcy Court’s decision after de novo review and entered judgment for the trustee. While EBIA’s appeal to the Ninth Circuit was pending, this Court held that Article III did not permit a Bankruptcy Court to enter final judgment on a counterclaim for tortious interference, even though final adjudication of that claim by the Bankruptcy Court was authorized by statute. Stern v. Marshall, 564 U. S. ___, ___. In light of Stern, EBIA moved to dismiss its appeal for lack of jurisdiction. The Ninth Circuit rejected EBIA’s motion and affirmed. It acknowledged the trustee’s claims as “Stern claims,” i.e., claims designated for final adjudication in the bankruptcy court as a statutory matter, but prohibited from proceeding in that way as a constitutional matter. The Court of Appeals nevertheless concluded that EBIA had impliedly consented to jurisdiction. The Court of Appeals also observed that the Bankruptcy Court’s judgment could instead be treated as proposed findings of fact and conclusions of law, subject to de novo review by the District Court. Held: 1. Under the Bankruptcy Amendments and Federal Judgeship Act of 1984, federal district courts have original jurisdiction in bankruptcy cases and may refer to bankruptcy judges two statutory categories of proceedings: “core” proceedings and “non-core” proceedings. See generally 28 U. S. C. §157. In core proceedings, a bankruptcy judge “may hear and determine . . . and enter appropriate orders and judgments,” subject to the district court’s traditional appellate review. §157(b)(1). In non-core proceedings—those that are “not . . . core” but are “otherwise related to a case under title 11,” §157(c)(1)—final judgment must be entered by the district court after de novo review of the bankruptcy judge’s proposed findings of fact and conclusions of law, ibid., except that the bankruptcy judge may enter final judgment if the parties consent, §157(c)(2). In Stern, the Court confronted an underlying conflict between the 1984 Act and the requirements of Article III. The Court held that Article III prohibits Congress from vesting a bankruptcy court with the authority to finally adjudicate the “core” claim of tortious interference. The Court did not, however, address how courts should proceed when they encounter a Stern claim. . 2. Stern claims may proceed as non-core within the meaning of §157(c). Lower courts have described Stern claims as creating a statutory “gap,” since bankruptcy judges are not explicitly authorized to propose findings of fact and conclusions of law in a core proceeding. However, this so-called gap is closed by the Act’s severability provision, which instructs that where a “provision of the Act or [its] application . . . is held invalid, the remainder of th[e] Act . . . is not affected thereby.” 98Stat. 344. As applicable here, when a court identifies a Stern claim, it has “held invalid” the “application” of §157(b), and the “remainder” not affected includes §157(c), which governs non-core proceedings. Accordingly, where a claim otherwise satisfies §157(c)(1), the bankruptcy court should simply treat the Stern claim as non-core. This conclusion accords with the Court’s general approach to severability, which is to give effect to the valid portion of a statute so long as it “remains ‘fully operative as a law,’ ” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 509, and so long as the statutory text and context do not suggest that Congress would have preferred no statute at all, ibid. . 3. Section 157(c)(1)’s procedures apply to the fraudulent conveyance claims here. This Court assumes without deciding that these claims are Stern claims, which Article III does not permit to be treated as “core” claims under §157(b). But because the claims assert that property of the bankruptcy estate was improperly removed, they are self-evidently “related to a case under title 11.” Accordingly, they fit comfortably within the category of claims governed by §157(c)(1). The Bankruptcy Court would have been permitted to follow that provision’s procedures, i.e., to submit proposed findings of fact and conclusions of law to the District Court for de novo review. . 4. Here, the District Court’s de novo review of the Bankruptcy Court’s order and entry of its own valid final judgment cured any potential error in the Bankruptcy Court’s entry of judgment. EBIA contends that it was constitutionally entitled to review by an Article III court regardless of whether the parties consented to bankruptcy court adjudication. In the alternative, EBIA asserts that even if such consent were constitutionally permissible, it did not in fact consent. Neither contention need be addressed here, because EBIA received the same review from the District Court that it would have received had the Bankruptcy Court treated the claims as non-core proceedings under §157(c)(1). . 702 F.3d 553, affirmed. Thomas, J., delivered the opinion for a unanimous Court.

Aegis Retirement Income Services, Inc. (BIA), and Bellingham Insurance Agency, Inc., were insolvent. After BIA filed a voluntary Chapter 7 bankruptcy petition in the Bankruptcy Court, appellee bankruptcy trustee and respondent Arkison, the trustee in this case, filed a complaint in the same court against EBIA and others, alleging that the trustee used various methods to fraudulently convey BIA assets to petitioner. After Arkison filed a brief, this Court decided Stern v. Marshall, 564 U. S. ___, which held that Article III of the Constitution does not permit a bankruptcy court to enter final judgment on a counterclaim for tortious interference, id., at ___, even though final adjudication of that claim by the bankruptcy court was authorized by statute, see Part II-B, infra. The court also held that, in light of Stern, and Granfinanciera, S. A. v. Nordberg, 492 U.S. 33 (1989), this Court held that the fraudulent conveyance claims at issue are Stern claims, and that the District Court erred in holding that the validity of the trustee-secured conveyance claim was permissible. The Court of Appeals affirmed. Held: The judgment is affirmed. ;;. 702 F. 3d 553, affirmed. ;. (a) When, under Stern's reasoning, the Constitution prohibits bankruptcy courts from finally adjudicating certain bankruptcy-related claims, the relevant statute permits a court to issue proposed findings of fact and conclusions of law to be reviewed de novo by the district court. This approach accords with the bankruptcy statute and does not implicate the constitutional defect identified by Stern. . (b) Section 157(b)(2)(C), as added by the 1984 Act, lists counterclaims by the estate against persons filing claims against the estate as a core proceeding, thereby authorizing the court to adjudicate the claim to final judgment. Stern made clear that some claims labeled by Congress as "core" may not be adjudicated by a court in the manner designated by §157(b). Although § 157(c)(1) permits claims to proceed as non-core within the meaning of that provision, it permits bankruptcy courts, with the consent of the parties, to review such claims as noncore. See, e.g., In re Parco Merged Media Corp., 489 B. R. 323, 326 (Me. 2013) (collecting cases). When a court identifies a claim as a Stern claim, it has necessarily held invalid the bankruptcy application of §157 (b) to the litigant's claim and must then review those proposed findings and conclusions de novevo and enter any final orders or judgments. If a matter is core, the statute empowers the bankruptcy judge to enter judgment on the claim, subject to appellate review by the district court, and if the parties have not consented to adjudication by the court, the judge must propose findings of facts and conclusions of law and then the court must review the proceeding. The conclusion that the remainder of the statute may continue to apply to Stern claims accords with this Court's general approach to severability. Cf. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 S. 477, 509 (CA5), and so long as it is not evident from the statutory text and context that Congress would have preferred no statute at all. Neither of those concerns applies here. In effect, the District Court conducted de novvo review of the summary judgment claims, concluding in a written opinion that there were no disputed issues of material fact and that the trustee was entitled to judgment as a matter of law, and thus received the same review from the court that it would have received if the bankruptcy court had treated the claims as a noncore proceedings under §157. Accordingly, the court cured the error and granted certiorari. (c) Because this case did not proceed in precisely that fashion, the case does not require this Court to address whether the trustee received the review and entry of judgment to which he claims constitutional entitlement. Because these Stern claims fit comfortably within the category of claims governed by §1471(b), which permits district courts to withdraw such matters from the bankruptcy courts for "cause shown," the court would have been permitted to follow the procedures required by the provision, i.e., to submit proposed findings of fact to the district courts. Section157(d), which governs non-hardcore proceedings, does not render the court powerless to act on Stern claims. Moreover, the removal of claims from core bankruptcy jurisdiction does not meaningfully change the division of labor in the current statute. Accepting the trustee's contention that district courts are required to hear all claims in the first instance would dramatically alter Congress' division of responsibility set by Congress.

2013_12-7822

https://www.oyez.org/cases/2013/12-7822

. Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants[1] consents. See United States v. Matlock, 415 U. S. 164 (1974) . In Georgia v. Randolph, 547 U. S. 103 (2006) , we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared. I A The events involved in this case occurred in Los Angeles in October 2009. After observing Abel Lopez cash a check, petitioner Walter Fernandez approached Lopez and asked about the neighborhood in which he lived. When Lopez responded that he was from Mexico, Fernandez laughed and told Lopez that he was in territory ruled by the “D.F.S.,” i.e., the “Drifters” gang. App. 4–5. Petitioner then pulled out a knife and pointed it at Lopez’ chest. Lopez raised his hand in self-defense, and petitioner cut him on the wrist. Lopez ran from the scene and called 911 for help, but petitioner whistled, and four men emerged from a nearby apartment building and attacked Lopez. After knocking him to the ground, they hit and kicked him and took his cell phone and his wallet, which contained $400 in cash. A police dispatch reported the incident and mentioned the possibility of gang involvement, and two Los Angeles police officers, Detective Clark and Officer Cirrito, droveto an alley frequented by members of the Drifters. A man who appeared scared walked by the officers and said: “ ‘[T]he guy is in the apartment.’ ” Id., at 5. The officers then observed a man run through the alley and into the building to which the man was pointing. A minute or two later, the officers heard sounds of screaming and fighting coming from that building. After backup arrived, the officers knocked on the door of the apartment unit from which the screams had been heard. Roxanne Rojas answered the door. She was holding a baby and appeared to be crying. Her face was red, and she had a large bump on her nose. The officers also saw blood on her shirt and hand from what appeared to be a fresh injury. Rojas told the police that she had been in a fight. Officer Cirrito asked if anyone else was in the apartment, and Rojas said that her 4-year-old son was the only other person present. After Officer Cirrito asked Rojas to step out of the apartment so that he could conduct a protective sweep, petitioner appeared at the door wearing only boxer shorts. Apparently agitated, petitioner stepped forward and said, “ ‘You don’t have any right to come in here. I know my rights.’ ” Id., at 6. Suspecting that petitioner had assaulted Rojas, the officers removed him from the apartmentand then placed him under arrest. Lopez identified petitioner as his initial attacker, and petitioner was taken to the police station for booking. Approximately one hour after petitioner’s arrest, Detective Clark returned to the apartment and informed Rojas that petitioner had been arrested. Detective Clark requested and received both oral and written consent from Rojas to search the premises.[2] In the apartment, the police found Drifters gang paraphernalia, a butterfly knife, clothing worn by the robbery suspect, and ammunition. Rojas’ young son also showed the officers where petitioner had hidden a sawed-off shotgun. B Petitioner was charged with robbery, Cal. Penal Code Ann. §211 (West 2008), infliction of corporal injury on a spouse, cohabitant, or child’s parent, §273.5(a), possession of a firearm by a felon, §12021(a)(1)(West 2009), possession of a short-barreled shotgun, §12020(a)(1), and felony possession of ammunition, §12316(b)(1). Before trial, petitioner moved to suppress the evidence found in the apartment, but after a hearing, the court denied the motion. Petitioner then pleaded nolo conten-dere to the firearms and ammunition charges. On the re-maining counts—for robbery and infliction of corporal injury—he went to trial and was found guilty by a jury. The court sentenced him to 14 years of imprisonment. The California Court of Appeal affirmed. 208 Cal. App. 4th 100, 145 Cal. Rptr. 3d 51 (2012). Because Randolph did not overturn our prior decisions recognizing that an occupant may give effective consent to search a shared residence, the court agreed with the majority of the federal circuits that an objecting occupant’s physical presence is “indispensible to the decision in Randolph.” Id., at 122, 145 Cal. Rptr. 3d, at 66.[3] And because petitioner was not present when Rojas consented, the court held that petitioner’s suppression motion had been properly denied. Id., at 121, 145 Cal. Rptr. 3d, at 65. The California Supreme Court denied the petition for review, and we granted certiorari. 569 U. S. ___ (2013). II A The Fourth Amendment prohibits unreasonable searches and seizures and provides that a warrant may not be issued without probable cause, but “the text of the Fourth Amendment does not specify when a search warrant must be obtained.” Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 5). Our cases establish that a warrant is generally required for a search of a home, Brigham City v. Stuart, 547 U. S. 398, 403 (2006) , but “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ ” ibid.; see also Michigan v. Fisher, 558 U. S. 45, 47 (2009) ( per curiam). And certain categories of permissible warrantless searches have long been recognized. Consent searches occupy one of these categories. “Consent searches are part of the standard investigatorytechniques of law enforcement agencies” and are “a con-stitutionally permissible and wholly legitimate aspect of effective police activity.” Schneckloth v. Bustamonte, 412 U. S. 218 –232 (1973). It would be unreasonable—indeed, absurd—to require police officers to obtain a warrant when the sole owner or occupant of a house or apartment voluntarily consents to a search. The owner of a home has a right to allow others to enter and examine the premises, and there is no reason why the owner should not be permitted to extend this same privilege to police officers if that is the owner’s choice. Where the owner believes that he or she is under suspicion, the owner may want the police to search the premises so that their suspicions are dispelled. This may be particularly important where the owner has a strong interest in the apprehension of the perpetrator of a crime and believes that the suspicions of the police are deflecting the course of their investigation. An owner may want the police to search even where they lack probable cause, and if a warrant were always required, this could not be done. And even where the police could establish probable cause, requiring a warrant despite the owner’s consent would needlessly inconvenience everyone involved—not only the officers and the magistrate but also the occupant of the premises, who would generally either be compelled or would feel a need to stay until the search was completed. Michigan v. Summers, 452 U. S. 692, 701 (1981) .[4] While it is clear that a warrantless search is reasonable when the sole occupant of a house or apartment consents, what happens when there are two or more occupants? Must they all consent? Must they all be asked? Is consent by one occupant enough? The Court faced that problem 40 years ago in United States v. Matlock, 415 U. S. 164 (1974) . In that case, Matlock and a woman named Graff were living together in a house that was also occupied by several of Graff’s siblings and by her mother, who had rentedthe house. While in the front yard of the house, Matlock was arrested for bank robbery and was placed in a squad car. Although the police could have easily asked him for consent to search the room that he and Graff shared, they did not do so. Instead, they knocked on the door and obtained Graff’s permission to search. The search yielded incriminating evidence, which the defendant sought to suppress, but this Court held that Graff’s consent justified the warrantless search. As the Court put it, “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” Id., at 170. In Illinois v. Rodriguez, 497 U. S. 177 (1990) , the Court reaffirmed and extended the Matlock holding. In Rodriguez, a woman named Fischer told police officers that she had been assaulted by Rodriguez in what she termed “ ‘our’ apartment.” 497 U. S., at 179. She also informed the officers that Rodriguez was asleep in the apartment, and she then accompanied the officers to that unit. When they arrived, the officers could have knocked on the door and awakened Rodriguez, and had they done so, Rodriguez might well have surrendered at the door and objected to the officers’ entry. Instead, Fischer unlocked the door, the officers entered without a warrant, and they saw drug paraphernalia and containers filled with white powder in plain view. After the search, the police learned that Fischer no longer resided at the apartment, and this Court held that she did not have common authority over the premises at the time in question. The Court nevertheless held that the warrantless entry was lawful because the police reasonably believed that Fischer was a resident. Id., at 188–189. B While consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search, we recognized a narrow exception to this rule in Georgia v. Randolph, 547 U. S. 103 (2006) . In that case, police offi-cers responded to the Randolphs’ home after receiving a report of a domestic dispute. When the officers arrived, Janet Randolph informed the officers that her estranged husband, Scott Randolph, was a cocaine user and that there were “items of drug evidence” in the house. Id., at 107 (internal quotation marks omitted). The officers first asked Scott for consent to search, but he “unequivocally refused.” Ibid. The officers then turned to Janet, and she consented to the search, which produced evidence that was later used to convict Scott for possession of cocaine. Without questioning the prior holdings in Matlock and Rodriguez, this Court held that Janet Randolph’s consent was insufficient under the circumstances to justify the warrantless search. The Court reiterated the proposition that a person who shares a residence with others assumes the risk that “any one of them may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another.” 547 U. S., at 111. But the Court held that “a physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant.” Id., at 122–123 (emphasis added). The Court’s opinion went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present. Again and again, the opinion of the Court stressed this controlling factor. See id., at 106 (“present at the scene”); ibid. (“physically present”); id., at 108 (“a co-tenant who is present”); id., at 109 (“physically present”); id., at 114 (“a present and objecting co-tenant”); id., at 119 (a co-tenant “standing at the door and expressly refusing consent”); id., at 120 (“a physically present resident”), id., at 121 (“a physically present fellow tenant objects”); ibid. (“[A] potential defendant with self-interest in objecting is at the door and objects”); id., at 122 (“[A] physically present inhabitant’s express refusal of consent to a police search is dispositive as to him”). The Court’s opinion could hardly have been clearer on this point, and the separate opinion filed by Justice Breyer, whose vote was decisive, was equally unambiguous. See id., at 126 (concurring) (“The Court’s opinion does not apply where the objector is not present ‘and object[ing]’ ”). III In this case, petitioner was not present when Rojas consented, but petitioner still contends that Randolph is controlling. He advances two main arguments. First, he claims that his absence should not matter since he was absent only because the police had taken him away. Second, he maintains that it was sufficient that he objected to the search while he was still present. Such an objection, he says, should remain in effect until the objecting party “no longer wishes to keep the police out of his home.” Brief for Petitioner 8. Neither of these arguments is sound. A We first consider the argument that the presence of the objecting occupant is not necessary when the police are responsible for his absence. In Randolph, the Court suggested in dictum that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” 547 U. S., at 121. We do not believe the statement should be read to suggest that improper motive may invalidate objectively justified removal. Hence, it does not govern here. The Randolph dictum is best understood not to require an inquiry into the subjective intent of officers who detain or arrest a potential objector but instead to refer to situations in which the removal of the potential objector is not objectively reasonable. As petitioner acknowledges, see Brief for Petitioner 25, our Fourth Amendment cases “have repeatedly rejected” a subjective approach. Brigham City, 547 U. S., at 404 (alteration and internal quotation marks omitted). “Indeed, we have never held, outside limited contexts such as an ‘inventory search or administrative inspection . . . , that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment.’ ” King, 563 U. S., at ___ (slip op.,at 10). Petitioner does not claim that the Randolph Court meant to break from this consistent practice, and we do not think that it did. And once it is recognized that the test is one of objective reasonableness, petitioner’s argument collapses. He does not contest the fact that the police had reasonable grounds for removing him from the apartment so that they could speak with Rojas, an apparent victim of domestic violence, outside of petitioner’s potentially intimidating presence. In fact, he does not even contest the existence of probable cause to place him under arrest. We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason. This conclusion does not “make a mockery of Randolph,” as petitioner protests. Brief for Petitioner 9. It simply accepts Randolph on its own terms. The Randolph holding unequivocally requires the presence of the objecting occupant in every situation other than the one mentioned in the dictum discussed above. B This brings us to petitioner’s second argument, viz., that his objection, made at the threshold of the premises that the police wanted to search, remained effective until he changed his mind and withdrew his objection. This argument is inconsistent with Randolph’s reasoning in at least two important ways. First, the argument cannot be squared with the “widely shared social expectations” or “customary social usage” upon which the Randolph holding was based. See 547 U. S., at 111, 121. Explaining why consent by one occupant could not override an objection by a physically present occupant, the Randolph Court stated: “[I]t is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, ‘stay out.’ Without some very good reason, no sensible person would go inside under those conditions.” Id., at 113. It seems obvious that the calculus of this hypothetical caller would likely be quite different if the objecting tenant was not standing at the door. When the objecting occupant is standing at the threshold saying “stay out,” a friend or visitor invited to enter by another occupant can expect at best an uncomfortable scene and at worst violence if he or she tries to brush past the objector. But when the objector is not on the scene (and especially when it is known that the objector will not return during the course of the visit), the friend or visitor is much more likely to accept the invitation to enter.[5] Thus, petitioner’s argument is inconsistent with Randolph’s reasoning. Second, petitioner’s argument would create the very sort of practical complications that Randolph sought to avoid. The Randolph Court recognized that it was adopting a “formalis[tic]” rule, but it did so in the interests of “simple clarity” and administrability. Id., at 121, 122. The rule that petitioner would have us adopt would produce a plethora of practical problems. For one thing, there is the question of duration. Petitioner argues that an objection, once made, should last until it is withdrawn by the objector, but such a rule would be unreasonable. Suppose that a husband and wife owned a house as joint tenants and that the husband, after objecting to a search of the house, was convicted and sentenced to a 15-year prison term. Under petitioner’s proposed rule, the wife would be unable to consent to a search of the house 10 years after the date on which her husband objected. We refuse to stretch Randolph to such strange lengths. Nor are we persuaded to hold that an objection lasts for a “reasonable” time. “[I]t is certainly unusual for this Court to set forth precise time limits governing police action,” Maryland v. Shatzer, 559 U. S. 98, 110 (2010) , and what interval of time would be reasonable in this context? A week? A month? A year? Ten years? Petitioner’s rule would also require the police and ultimately the courts to determine whether, after the passage of time, an objector still had “common authority” over the premises, and this would often be a tricky question. Suppose that an incarcerated objector and a consenting co-occupant were joint tenants on a lease. If the objector, after incarceration, stopped paying rent, would he still have “common authority,” and would his objection retain its force? Would it be enough that his name remainedon the lease? Would the result be different if the object-ing and consenting lessees had an oral month-to-month tenancy? Another problem concerns the procedure needed to register a continuing objection. Would it be necessary for an occupant to object while police officers are at the door? If presence at the time of consent is not needed, would an occupant have to be present at the premises when the objection was made? Could an objection be made pre-emptively? Could a person like Scott Randolph, suspecting that his estranged wife might invite the police to view his drug stash and paraphernalia, register an objection in advance? Could this be done by posting a sign in front of the house? Could a standing objection be registered by serving notice on the chief of police? Finally, there is the question of the particular law enforcement officers who would be bound by an objection. Would this set include just the officers who were present when the objection was made? Would it also apply to other officers working on the same investigation? Would it extend to officers who were unaware of the objection? How about officers assigned to different but arguably related cases? Would it be limited by law enforcement agency? If Randolph is taken at its word—that it applies only when the objector is standing in the door saying “stay out” when officers propose to make a consent search—all of these problems disappear. In response to these arguments, petitioner argues that Randolph’s requirement of physical presence is not without its own ambiguity. And we acknowledge that if, as we conclude, Randolph requires presence on the premises to be searched, there may be cases in which the outer boundary of the premises is disputed. The Court confronted a similar problem last Term in Bailey v. United States, 568 U. S. ___ (2013), but despite arguments similar to those now offered by petitioner, the Court adopted a rule that applies only when the affected individual is near the premises being searched. Having held that a premises rule is workable in that context, we see no ground for reaching a different conclusion here. C Petitioner argues strenuously that his expansive interpretation of Randolph would not hamper law enforcement because in most cases where officers have probable cause to arrest a physically present objector they also have probable cause to search the premises that the objector does not want them to enter, see Brief for Petitioner 20–23, but this argument misunderstands the constitutional status of consent searches. A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant. Even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search, the magistrate who must review the warrant application, and the party willing to give consent. Whena warrantless search is justified, requiring the police to obtain a warrant may “unjustifiably interfer[e] with legitimate law enforcement strategies.” King, 563 U. S., at ___ (slip op., at 13). Such a requirement may also impose an unmerited burden on the person who consents to an immediate search, since the warrant application procedure entails delay. Putting the exception the Court adopted in Randolph to one side, the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to search in order to dispel “suspicion raised by sharing quarters with a criminal.” 547 U. S., at 116; see also Schneckloth, 412 U. S., at 243 (evidence obtained pursuant to a consent search “may insure that a wholly innocent person is not wrongly charged with a criminal offense”). And an occupant may want the police to conduct a thorough search so that any dangerous contraband can be found and removed. In this case, for example, the search resulted in the discovery and removal of a sawed-off shotgun to which Rojas’ 4-year-old son had access. Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power. * * * The judgment of the California Court of Appeal isaffirmed. It is so ordered.Notes 1 We use the terms “occupant,” “resident,” and “tenant” interchangeably to refer to persons having “common authority” over premises within the meaning of . See v. , . 2 Both petitioner and the dissent suggest that Rojas’ consent was coerced. , at 9, n. 5 (opinion of .). But the trial court found otherwise, App. 152, and the correctness of that finding is not before us. In suggesting that Rojas’ consent was coerced, the dissent recites portions of Rojas’ testimony from the suppression hearing that the trial judge appears to have rejected. Similarly, the jury plainly did not find Rojas to be credible. At trial, she testified for the defense and told the jury, among other things, that the wounds observed by the officers who came to her door were not inflicted by petitioner but by a woman looking for petitioner during a fight. 208 Cal. App. 4th 100, 109–110, 145 Cal. Rptr. 3d 51, 56 (2012). The jury obviously did not believe this testimony because it found petitioner guilty of inflicting corporal injury on her. 3 See v. , 674 F. 3d 491, 498 (CA5 2012) (“ was a narrow exception to the general rule permitting cotenant consent, relevant only as to physically present objectors”); v. , 518 F. 3d 954, 960 (CA8 2008) (concluding that “the narrow holding of , which repeatedly referenced the defendant’s physical presence immediate objection is inapplicable”); v. , 536 F. 3d 776, 777 (CA7 2008) (recognizing that “ left the bulk of third-party consent law in place; its holding applies only when the defendant is both present and objects to the search of his home”); v. , 491 F. 3d 1221, 1227 (CA10 2007) (“carefully delineated the narrow circumstances in which its holding applied, and . . . consciously employed a rule requiring an express objection by a present co-tenant”); but see v. , 516 F. 3d 1117, 1124–1125 (CA9 2008) (holding that “when a co-tenant objects to a search and another party with common authority subsequently gives consent to that search in the absence of the first co-tenant the search is invalid as to the objecting co-tenant” because “[o]nce a co-tenant has registered his objection, his refusal to grant consent remains effective barring some objective manifestation that he has changed his position and no longer objects”). 4 A main theme of the dissent is that the police in this case had probable cause to search the apartment and therefore could have obtained a warrant. Of course, this will not always be so in cases in which one occupant consents to a search and the other objects, and the dissent does not suggest that a warrant should be required only when probable cause is present. As a result, the dissent’s repeated references to the availability of a warrant in this case are beside the point. 5 Although the dissent intimates that “customary social usage” goes further than this, see , at 4, the dissent provides no support for this doubtful proposition. In the present case, for example, suppose that Rojas had called a relative, a friend, a supportive neighbor, or a person who works for a group that aids battered women and had invited that individual to enter and examine the premises while petitioner was in jail. Would any of those invitees have felt that it was beyond Rojas’ authority to extend that invitation over petitioner’s objection?

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus FERNANDEZ v. CALIFORNIA certiorari to the court of appeal of california, second appellate district No. 12–7822. Argued November 13, 2013—Decided February 25, 2014 Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments. They knocked on the apartment door, which was answered by Roxanne Rojas, who appeared to be battered and bleeding. When the officers asked her to step out of the apartment so that they could conduct a protective sweep, petitioner came to the door and objected. Suspecting that he had assaulted Rojas, the officers removed petitioner from the apartment and placed him under arrest. He was then identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas’ oral and written consent, searched the premises, where he found several items linking petitioner to the robbery. The trial court denied petitioner’s motion to suppress that evidence, and he was convicted. The California Court of Appeal affirmed. It held that because petitioner was not present when Rojas consented to the search, the exception to permissible warrantless consent searches of jointly occupied premises that arises when one of the occupants present objects to the search, Georgia v. Randolph, 547 U.S. 103, did not apply, and therefore, petitioner’s suppression motion had been properly denied. Held: Randolph does not extend to this situation, where Rojas’ consent was provided well after petitioner had been removed from their apartment. . (a) Consent searches are permissible warrantless searches, Schneckloth v. Bustamonte, 412 U.S. 218, 228, 231–232, and are clearly reasonable when the consent comes from the sole occupant of the premises. When multiple occupants are involved, the rule extends to the search of the premises or effects of an absent, nonconsenting occupant so long as “the consent of one who possesses common authority over [the] premises or effects” is obtained. United States v. Matlock, 415 U.S. 164, 170. However, when “a physically present inhabitan[t]” refuses to consent, that refusal “is dispositive as to him, regardless of the consent of a fellow occupant.” Randolph, 547 U. S., at 122–123. A controlling factor in Randolph was the objecting occupant’s physical presence. See, e.g., id., at 106, 108, 109, 114. . (b) Petitioner contends that, though he was not present when Rojas consented, Randolph nevertheless controls, but neither of his arguments is sound. . (1) He first argues that his absence should not matter since it occurred only because the police had taken him away. Dictum in Randolph suggesting that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection,” 547 U. S., at 121, is best understood to refer to situations in which the removal of the potential objector is not objectively reasonable. Petitioner does not contest the fact that the police had reasonable grounds for his removal or the existence of probable cause for his arrest. He was thus in the same position as an occupant absent for any other reason. . (2) Petitioner also argues that the objection he made while at the threshold remained effective until he changed his mind and withdrew it. This is inconsistent with Randolph in at least two important ways. It cannot be squared with the “widely shared social expectations” or “customary social usage” upon which Randolph’s holding was based. 547 U. S., at 111, 121. It also creates the sort of practical complications that Randolph sought to avoid by adopting a “formalis[tic]” rule, id., at 121, e.g., requiring that the scope of an objection’s duration and the procedures necessary to register a continuing objection be defined. . (c) Petitioner claims that his expansive interpretation of Randolph would not hamper law enforcement because in most cases where officers have probable cause to arrest a physically present objector they also have probable cause to obtain a warrant to search the premises that the objector does not want them to enter. But he misunderstands the constitutional status of consent searches, which are permissible irrespective of the availability of a warrant. Requiring officers to obtain a warrant when a warrantless search is justified may interfere with law enforcement strategies and impose an unmerited burden on the person willing to consent to an immediate search. . 208 Cal. App. 4th 100, 145 Cal. Rptr. 3d 51, affirmed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, and Breyer, JJ., joined. Scalia, J., and Thomas, J., filed concurring opinions. Ginsburg, J., filed a dissenting opinion, in which Sotomayor and Kagan, JJ., joined.

Petitioner Fernandez was arrested and charged with robbery of a jointly occupied apartment. The apartment was searched after Fernandez knocked on the door and received both oral and written consent from Rojas to search the premises. In the apartment, the police found Drifters gang paraphernalia, a butterfly knife, clothing worn by the robbery suspect, and ammunition. Rojas also showed the officers where petitioner had hidden a sawed-off shotgun. Petitioner was charged with assault with a deadly weapon. The court denied his motion to suppress the shotgun evidence, but the jury found him guilty and sentenced him to imprisonment. The California Court of Appeal affirmed, recognizing prior decisions recognizing that an occupant may consent to search a shared residence if the objecting occupant is physically present. Held: 1. A warrantless search is reasonable when the sole occupant of a house or apartment consents to a search. The owner of a home has a right to allow others to enter and examine the premises, and there is no reason why the owner should not extend this same privilege to police officers if that is the owner's choice. Where the owner believes that he or she is under suspicion, the owner may want the police to search such premises so that their suspicions are dispelled. An occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason. Georgia v. Randolph, 547 U. S. 103 (2006), overruled. . 2. The Court of Appeals erred in recognizing that a consent by one occupant of jointly occupied premises may be effective in situations where the objector does not want them to enter. United States v. Matlock, 415 U.S. 164 (1974), followed. P.. 3. The Randolph holding unequivocally requires the occupant's presence in every situation other than the one mentioned in the dictum discussed above. This conclusion does not make a mockery of Randolph on its own terms. Although it would be unreasonable to require police officers to obtain a warrant merely because the owner consents, it would needlessly inconvenience everyone involved, including the officers and the magistrate, who would generally be compelled or would feel a need to stay until the search was completed, and would create the very sort of practical complications that Randolph sought to avoid by adopting a formalis[tic] rule, which would trample on the rights of the occupant willing to consent. Such an exception would also be unmerited, since the warrant procedure imposes burdens on the officers who wish to search, the magistrate who must review the warrant application, and the party willing to give consent.. 4. The police had probable cause to search respondent apartment, and therefore could have obtained a warrant. Petitioner argues that his absence should not matter since he was absent only because the police had taken him away, and that it was sufficient that he objected to the search while he was still present. The argument is inconsistent with Randolph in at least two important respects. First, the argument cannot be squared with the reasoning of the holding that a physically present inhabitant's express refusal of consent to a police search of his home is dispositive as to him, regardless of the consent of a fellow occupant. Second, petitioner argues that a warrant should be required only when probable cause is present, and this misunderstands the constitutional status of consent searches. Even with modern technological advances, the warrant procedures impose burdens on both the officer who must search and the other occupant, who can expect at best an uncomfortable scene and at worst violence if he tries to brush past an objector, and also the occupant who would be more likely to accept the invitation. Thus, petitioner contends that his objection, made at the threshold of the premises that the police wanted to search remained effective until he changed his mind and withdrew his objection. These arguments are beside the point. Moreover, the dissent provides no support for the doubtful proposition that customary social usage goes further than this, see, e.g., at 4... 5. The Fourth Amendment does not bar the police from using a rule that the court adopted in Randolph to determine whether an objection, once made, should last until it is withdrawn by objector. Here, the wife of a joint tenant was convicted and sentenced to a 15-year prison term, and she had the right to refuse to allow her son access to the premises while petitioner was incarcerated. Denying Rojas a month-to-month tenancy would also bar her from having access to her son, who was in a position of power over her and had been beaten by her husband. See Shzerzer v. Maryland,,. On the other hand, the jury plainly did not find Rojas credible, since she testified for the defense and told the jury, among other things, that the wounds observed by the officers at the door were not inflicted by petitioner but by a woman looking for petitioner during a fight. Furthermore, she testified that

2013_12-751

https://www.oyez.org/cases/2013/12-751

. The Employee Retirement Income Security Act of 1974 (ERISA), 88Stat. 829, as amended, 29 U. S. C. §1001 et seq., requires the fiduciary of a pension plan to act prudently in managing the plan’s assets. §1104(a)(1)(B). This case focuses upon that duty of prudence as applied to the fiduciary of an “employee stock ownership plan” (ESOP), a type of pension plan that invests primarily in the stock of the company that employs the plan participants. We consider whether, when an ESOP fiduciary’s decision to buy or hold the employer’s stock is challenged in court, the fiduciary is entitled to a defense-friendly standard that the lower courts have called a “presumption of prudence.” The Courts of Appeals that have considered the question have held that such a presumption does apply, with the presumption generally defined as a requirement that the plaintiff make a showing that would not be required in an ordinary duty-of-prudence case, such as that the employer was on the brink of collapse. We hold that no such presumption applies. Instead, ESOP fiduciaries are subject to the same duty of prudence that applies to ERISA fiduciaries in general, except that they need not diversify the fund’s assets. §1104(a)(2). I Petitioner Fifth Third Bancorp, a large financial services firm, maintains for its employees a defined-contribution retirement savings plan. Employees may choose to contribute a portion of their compensation to the Plan as retirement savings, and Fifth Third provides matching contributions of up to 4% of an employee’s compensation. The Plan’s assets are invested in 20 separate funds, including mutual funds and an ESOP. Plan participants can allocate their contributions among the funds however they like; Fifth Third’s matching contributions, on the other hand, are always invested initially in the ESOP, though the participant can then choose to move them to another fund. The Plan requires the ESOP’s funds to be “invested primarily in shares of common stock of Fifth Third.” App. 350. Respondents, who are former Fifth Third employees and ESOP participants, filed this putative class action in Federal District Court in Ohio. They claim that petitioners, Fifth Third and various Fifth Third officers, were fiduciaries of the Plan and violated the duties of loyalty and prudence imposed by ERISA. See §§1109(a), 1132(a)(2). We limit our review to the duty-of-prudence claims. The complaint alleges that by July 2007, the fiduciaries knew or should have known that Fifth Third’s stock was overvalued and excessively risky for two separate reasons. First, publicly available information such as newspaper articles provided early warning signs that subprime lending, which formed a large part of Fifth Third’s business, would soon leave creditors high and dry as the housing market collapsed and subprime borrowers became unable to pay off their mortgages. Second, nonpublic information (which petitioners knew because they were Fifth Third insiders) indicated that Fifth Third officers had deceived the market by making material misstatements about the company’s financial prospects. Those misstatements led the market to overvalue Fifth Third stock—the ESOP’s primary investment—and so petitioners, using the participants’ money, were consequently paying more for that stock than it was worth. The complaint further alleges that a prudent fiduciary in petitioners’ position would have responded to this information in one or more of the following ways: (1) by selling the ESOP’s holdings of Fifth Third stock before the value of those holdings declined, (2) by refraining from purchasing any more Fifth Third stock, (3) by canceling the Plan’s ESOP option, and (4) by disclosing the inside information so that the market would adjust its valuation of Fifth Third stock downward and the ESOP would no longer be overpaying for it. Rather than follow any of these courses of action, petitioners continued to hold and buy Fifth Third stock. Then the market crashed, and Fifth Third’s stock price fell by 74% between July 2007 and September 2009, when the complaint was filed. Since the ESOP’s funds were invested primarily in Fifth Third stock, this fall in price elimi-nated a large part of the retirement savings that the participants had invested in the ESOP. (The stock has since made a partial recovery to around half of its July 2007 price.) The District Court dismissed the complaint for failure to state a claim. 757 F. Supp. 2d 753 (SD Ohio 2010). The court began from the premise that where a lawsuit challenges ESOP fiduciaries’ investment decisions, “the plan fiduciaries start with a presumption that their ‘decision to remain invested in employer securities was reasonable.’ ” Id., at 758 (quoting Kuper v. Iovenko, 66 F. 3d 1447, 1459 (CA6 1995)). The court next held that this rule is applica-ble at the pleading stage and then concluded that the complaint’s allegations were insufficient to overcome it. 757 F. Supp. 2d, at 758–759, 760–762. The Court of Appeals for the Sixth Circuit reversed. 692 F. 3d 410 (2012). Although it agreed that ESOP fiduciaries are entitled to a presumption of prudence, it took the view that the presumption is evidentiary only and therefore does not apply at the pleading stage. Id., at 418–419. Thus, the Sixth Circuit simply asked whether the allegations in the complaint were sufficient to state a claim for breach of fiduciary duty. Id., at 419. It held that they were. Id., at 419–420. In light of differences among the Courts of Appeals as to the nature of the presumption of prudence applicable to ESOP fiduciaries, we granted the fiduciaries’ petition for certiorari. Compare In re Citigroup ERISA Litigation, 662 F. 3d 128, 139–140 (CA2 2011) (presumption of prudence applies at the pleading stage and requires the plaintiff to establish that the employer was “in a ‘dire situation’ that was objectively unforeseeable by the settlor” (quoting Edgar v. Avaya, Inc., 503 F. 3d 340, 348 (CA3 2007))), with Pfeil v. State Street Bank & Trust Co., 671 F. 3d 585, 592–596 (CA6 2012) (presumption of prudence applies only at summary judgment and beyond and only requires the plaintiff to establish that “ ‘a prudent fiduciary acting under similar circumstances would have made a different investment decision’ ” (quoting Kuper, supra, at 1459)). II A In applying a “presumption of prudence” that favors ESOP fiduciaries’ purchasing or holding of employer stock, the lower courts have sought to reconcile congressional directives that are in some tension with each other. On the one hand, ERISA itself subjects pension plan fiduciaries to a duty of prudence. In a section titled “Fiduciary duties,” it says: “(a) Prudent man standard of care “(1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and— “(A) for the exclusive purpose of: “(i) providing benefits to participants and their beneficiaries; and “(ii) defraying reasonable expenses of administering the plan; “(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; “(C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and “(D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter.” §1104. See also Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559, 570 (1985) (Section 1104(a)(1) imposes “strict standards of trustee conduct . . . derived from the common law of trusts—most prominently, a standard of loyalty and a standard of care”). On the other hand, Congress recognizes that ESOPs are “designed to invest primarily in” the stock of the participants’ employer, §1107(d)(6)(A), meaning that they are not prudently diversified. And it has written into law its “interest in encouraging” their use. One statutory provision says: “Intent of Congress Concerning Employee Stock Ownership Plans.—The Congress, in a series of laws [including ERISA] has made clear its interest in encouraging [ESOPs] as a bold and innovative method of strengthening the free private enterprise system which will solve the dual problems of securing capital funds for necessary capital growth and of bringing about stock ownership by all corporate employees. The Congress is deeply concerned that the objectives sought by this series of laws will be made unattainable by regulations and rulings which treat [ESOPs] as conventional retirement plans, which reduce the freedom of the employee trusts and employers to take the necessary steps to implement the plans, and which otherwise block the establishment and success of these plans.” Tax Reform Act of 1976, §803(h), 90Stat. 1590. In addition, and in keeping with this statement of intent, Congress has given ESOP fiduciaries a statutory exemption from some of the duties imposed on ERISA fiduciaries. ERISA specifically provides that, in the case of ESOPs and other eligible individual account plans, “the diversification requirement of [§1104(a)(1)(C)] and the prudence requirement (only to the extent that it requires diversification) of [§1104(a)(1)(B)] [are] not violated by acquisition or holding of [employer stock].” §1104(a)(2). Thus, an ESOP fiduciary is not obliged under §1104(a)(1)(C) to “diversif[y] the investments of the plan so as to minimize the risk of large losses” or under §1104(a)(1)(B) to act “with the care, skill, prudence, and diligence” of a “prudent man” insofar as that duty “re-quires diversification.” B Several Courts of Appeals have gone beyond ERISA’s express provision that ESOP fiduciaries need not diversify by giving ESOP fiduciaries a “presumption of prudence” when their decisions to hold or buy employer stock are challenged as imprudent. Thus, the Third Circuit has held that “an ESOP fiduciary who invests the [ESOP’s] assets in employer stock is entitled to a presumption that it acted consistently with ERISA” in doing so. Moench v. Robertson, 62 F. 3d 553, 571 (1995). The Ninth Circuit has said that to “overcome the presumption of prudent investment, plaintiffs must . . . make allegations that clearly implicate the company’s viability as an ongoing concern or show a precipitous decline in the employer’s stock . . . combined with evidence that the company is on the brink of collapse or is undergoing serious mismanagement.” Quan v. Computer Sciences Corp., 623 F. 3d 870, 882 (2010) (brackets and internal quotation marks omitted). And the Seventh Circuit has described the presumption as requiring plaintiffs to “allege and ultimately prove that the company faced ‘impending collapse’ or ‘dire circumstances’ that could not have been foreseen by the founder of the plan.” White v. Marshall & Ilsley Corp., 714 F. 3d 980, 989 (2013). The Sixth Circuit agreed that some sort of presumption favoring an ESOP fiduciary’s purchase of employer stock is appropriate. But it held that this presumption is an evidentiary rule that does not apply at the pleading stage. It further held that, to overcome the presumption, a plaintiff need not show that the employer was on the “brink of collapse” or the like. Rather, the plaintiff need only show that “ ‘a prudent fiduciary acting under similar circumstances would have made a different investment decision.’ ” 692 F. 3d, at 418 (quoting Kuper, 66 F. 3d, at 1459). Petitioners argue that the lower courts are right to apply a presumption of prudence, that it should apply from the pleading stage onward, and that the presumption should be strongly in favor of ESOP fiduciaries’ purchasing and holding of employer stock. In particular, petitioners propose a rule that a challenge to an ESOP fiduciary’s decision to hold or buy company stock “cannot prevail unless extraordinary circumstances, such as a serious threat to the employer’s viability, mean that continued investment would substantially impair the purpose of the plan.” Brief for Petitioners 16. In petitioners’ view, the “purpose of the plan,” in the case of an ESOP, is promoting employee ownership of the employer’s stock over the long term. And, petitioners assert, that purpose is “substantially impair[ed]”—rendering continued investment imprudent—only when “a serious threat to the employer’s viability” makes it likely that the employer will go out of business. This is because the goal of employee ownership will be substantially impaired only if the em-ployer goes out of business, leaving the employees withno company to own. Id., at 24. We must decide whether ERISA contains some such presumption. III A In our view, the law does not create a special presumption favoring ESOP fiduciaries. Rather, the same standard of prudence applies to all ERISA fiduciaries, including ESOP fiduciaries, except that an ESOP fiduciary is under no duty to diversify the ESOP’s holdings. This conclusion follows from the pertinent provisions of ERISA, which are set forth above. Section 1104(a)(1)(B) “imposes a ‘prudent person’ standard by which to measure fiduciaries’ investment decisions and disposition of assets.” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 143, n. 10 (1985) . Section 1104(a)(1)(C) requires ERISA fiduciaries to diversify plan assets. And §1104(a)(2) establishes the extent to which those duties are loosened in the ESOP context to ensure that employers are permitted and encouraged to offer ESOPs. Section 1104(a)(2) makes no reference to a special “presumption” in favor of ESOP fiduciaries. It does not require plaintiffs to allege that the employer was on the “brink of collapse,” under “extraordinary circumstances,” or the like. Instead, §1104(a)(2) simply modifies the duties imposed by §1104(a)(1) in a precisely delineated way: It provides that an ESOP fiduciary is exempt from §1104(a)(1)(C)’s diversification requirement and also from §1104(a)(1)(B)’s duty of prudence, but “only to the extent that it requires diversification.” §1104(a)(2) (emphasis added). Thus, ESOP fiduciaries, unlike ERISA fiduciaries generally, are not liable for losses that result from a failure to diversify. But aside from that distinction, because ESOP fiduciaries are ERISA fiduciaries and because §1104(a)(1)(B)’s duty of prudence applies to all ERISA fiduciaries, ESOP fiduciaries are subject to the duty of prudence just as other ERISA fiduciaries are. B Petitioners make several arguments to the contrary. First, petitioners argue that the special purpose of an ESOP—investing participants’ savings in the stock of their employer—calls for a presumption that such investments are prudent. Their argument is as follows: ERISA defines the duty of prudence in terms of what a prudent person would do “in the conduct of an enterprise of a like character and with like aims.” §1104(a)(1)(B). The “character” and “aims” of an ESOP differ from those of an ordinary retirement investment, such as a diversified mutual fund. An ordinary plan seeks (1) to maximize retirement savings for participants while (2) avoiding excessive risk. But an ESOP also seeks (3) to promote employee ownership of employer stock. For instance, Fifth Third’s Plan requires the ESOP’s assets to be “invested primarily in shares of common stock of Fifth Third.” App. 350. In light of this additional goal, an ESOP fiduciary’s decision to buy more shares of employer stock, even if it would be imprudent were it viewed solely as an attempt to secure financial retirement benefits while avoiding excessive risk, might nonetheless be prudent if understood as an attempt to promote employee ownership of employer stock, a goal that Congress views as important. See Tax Reform Act of 1976, §803(h), 90Stat. 1590. Thus, a claim that an ESOP fiduciary’s investment in employer stock was imprudent as a way of securing retirement savings should be viewed unfavorably because, unless the company was about to go out of business, that investment was advancing the additional goal of employee ownership of employer stock. We cannot accept the claim that underlies this argument, namely, that the content of ERISA’s duty of prudence varies depending upon the specific nonpecuniary goal set out in an ERISA plan, such as what petitioners claim is the nonpecuniary goal here. Taken in context, §1104(a)(1)(B)’s reference to “an enterprise of a like character and with like aims” means an enterprise with what the immediately preceding provision calls the “exclusive purpose” to be pursued by all ERISA fiduciaries: “providing benefits to participants and their beneficiaries” while “defraying reasonable expenses of administering the plan.” §§1104(a)(1)(A)(i), (ii). Read in the context of ERISA as a whole, the term “benefits” in the provision just quoted must be understood to refer to the sort of financial benefits (such as retirement income) that trustees who manage investments typically seek to secure for the trust’s beneficiaries. Cf. §1002(2)(A) (defining “employee pension bene-fit plan” and “pension plan” to mean plans that provide employees with “retirement income” or other “deferral of income”). The term does not cover nonpecuniary benefits like those supposed to arise from employee ownership of employer stock. Consider the statute’s requirement that fiduciaries act “in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter.” §1104(a)(1)(D) (emphasis added). This provision makes clear that the duty of prudence trumps the instructions of a plan document, such as an instruction to invest exclusively in employer stock even if financial goals demand the contrary. See also §1110(a) (With irrelevant exceptions, “any provision in an agreement or instrument which purports to relieve a fiduciary from responsibility . . . for any . . . duty under this part shall be void as against public policy”). This rule would make little sense if, as petitioners argue, the duty of prudence is defined by the aims of the particular plan as set out in the plan documents, since in that case the duty of prudence could never conflict with a plan document. Consider also §1104(a)(2), which exempts an ESOP fiduciary from §1104(a)(1)(B)’s duty of prudence but “only to the extent that it requires diversification.” What need would there be for this specific provision were the nature of §1104(a)(1)(B)’s duty of prudence altered anyway in the case of an ESOP in light of the ESOP’s aim of promoting employee ownership of employer stock? Cf. Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291 , n. 1 (2006) (“[I]t is generally presumed that statutes do not contain surplusage”). Petitioners are right to point out that Congress, in seeking to permit and promote ESOPs, was pursuing purposes other than the financial security of plan participants. See, e.g., Tax Reform Act of 1976, §803(h), 90Stat. 1590 (Con-gress intended ESOPs to help “secur[e] capital funds for necessary capital growth and . . . brin[g] about stock ownership by all corporate employees”). Congress pursued those purposes by promoting ESOPs with tax incentives. See 26 U. S. C. §§402(e)(4), 404(k), 1042. And it also pursued them by exempting ESOPs from ERISA’s diversification requirement, which otherwise would have precluded their creation. 29 U. S. C. §1104(a)(2). But we are not convinced that Congress also sought to promote ESOPs by further relaxing the duty of prudence as ap-plied to ESOPs with the sort of presumption proposed by petitioners. Second, and relatedly, petitioners contend that the duty of prudence should be read in light of the rule under the common law of trusts that “the settlor can reduce or waive the prudent man standard of care by specific language in the trust instrument.” G. Bogert & G. Bogert, Law of Trusts and Trustees §541, p. 172 (rev. 2d ed. 1993); see also Restatement (Second) of Trusts §174, Comment d (1957) (“By the terms of the trust the requirement of care and skill may be relaxed or modified”). The argument is that, by commanding the ESOP fiduciary to invest primarily in Fifth Third stock, the plan documents waived the duty of prudence to the extent that it comes into conflict with investment in Fifth Third stock—at least unless “extraordinary circumstances” arise that so threaten the goal of employee ownership of Fifth Third stock that the fiduciaries must assume that the settlor would want them to depart from that goal under the common-law “deviation doctrine.” See id., §167. This argument fails, however, in light of this Court’s holding that, by contrast to the rule at common law, “trust documents cannot excuse trustees from their duties under ERISA.” Central States, Southeast & Southwest Areas Pension Fund, 472 U. S., at 568; see also 29 U. S. C. §§1104(a)(1)(D), 1110(a). Third, petitioners argue that subjecting ESOP fiduciar-ies to a duty of prudence without the protection of a special presumption will lead to conflicts with the legal prohibition on insider trading. The potential for conflict arises because ESOP fiduciaries often are company insiders and because suits against insider fiduciaries frequently allege, as the complaint in this case alleges, that the fiduciaries were imprudent in failing to act on inside information they had about the value of the employer’s stock. This concern is a legitimate one. But an ESOP-specific rule that a fiduciary does not act imprudently in buying or holding company stock unless the company is on the brink of collapse (or the like) is an ill-fitting means of addressing it. While ESOP fiduciaries may be more likely to have insider information about a company that the fund is investing in than are other ERISA fiduciaries, the potential for conflict with the securities laws would be the same for a non-ESOP fiduciary who had relevant inside information about a potential investment. And the potential for conflict is the same for an ESOP fiduciary whose company is on the brink of collapse as for a fiduciary who is invested in a healthier company. (Surely a fiduciary is not obligated to break the insider trading laws even if his company is about to fail.) The potential for conflict therefore does not persuade us to accept a presumption of the sort adopted by the lower courts and proposed by petitioners. We discuss alternative means of dealing with the potential for conflict in Part IV, infra. Finally, petitioners argue that, without some sort of special presumption, the threat of costly duty-of-prudence lawsuits will deter companies from offering ESOPs to their employees, contrary to the stated intent of Congress. Cf. Massachusetts Mut. Life Ins. Co., 473 U. S., at 148, n. 17 (“Congress was concerned lest the cost of federal standards discourage the growth of private pension plans”). ESOP plans instruct their fiduciaries to invest in company stock, and §1104(a)(1)(D) requires fiduciaries to follow plan documents so long as they do not conflict with ERISA. Thus, in many cases an ESOP fiduciary who fears that continuing to invest in company stock may be imprudent finds himself between a rock and a hard place: If he keeps investing and the stock goes down he may be sued for acting imprudently in violation of §1104(a)(1)(B), butif he stops investing and the stock goes up he may besued for disobeying the plan documents in violation of§1104(a)(1)(D). See, e.g., White, 714 F. 3d, at 987 (“[F]iduciaries could be liable either for the company stock’s poor performance if they continue to invest in employer stock, or for missing the opportunity to benefit from good performance if they do not. . . . Such a high exposure to litigation risks in either direction could discourage employers from offering ESOPs, which are favored by Congress”); Evans v. Akers, 534 F. 3d 65, 68 (CA1 2008) (describing two lawsuits challenging the decisions of a plan’s fiduciaries with “diametrically opposed theor[ies] of liability”: one arguing that the fiduciaries acted imprudently by continuing to invest in company stock, and the other contending that they acted imprudently by divesting “despite the company’s solid potential to emerge from bankruptcy with substantial value for shareholders”). Petitioners argue that, given the threat of such expensive litigation, ESOPs cannot thrive unless their fiduciaries are granted a defense-friendly presumption. Petitioners are basically seeking relief from what they believe are meritless, economically burdensome lawsuits. We agree that Congress sought to encourage the creation of ESOPs. And we have recognized that “ERISA represents a ‘ “careful balancing” between ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of such plans.’ ” Conkright v. Frommert, 559 U. S. 506, 517 (2010) (quoting Aetna Health Inc. v. Davila, 542 U. S. 200, 215 (2004) ); see also Varity Corp. v. Howe, 516 U. S. 489, 497 (1996) (In “inter-pret[ing] ERISA’s fiduciary duties,” “courts may have to take account of competing congressional purposes, such as Congress’ desire to offer employees enhanced protection for their benefits, on the one hand, and, on the other, its desire not to create a system that is so complex that administrative costs, or litigation expenses, unduly discourage employers from offering welfare benefit plans in the first place”). At the same time, we do not believe that the presumption at issue here is an appropriate way to weed out meritless lawsuits or to provide the requisite “balancing.” The proposed presumption makes it impossible for a plaintiff to state a duty-of-prudence claim, no matter how meritorious, unless the employer is in very bad economic circumstances. Such a rule does not readily divide the plausible sheep from the meritless goats. That important task can be better accomplished through careful, context-sensitive scrutiny of a complaint’s allegations. We consequently stand by our conclusion that the law does not create a special presumption of prudence for ESOP fiduciaries. IV We consider more fully one important mechanism for weeding out meritless claims, the motion to dismiss for failure to state a claim. That mechanism, which gave rise to the lower court decisions at issue here, requires careful judicial consideration of whether the complaint states a claim that the defendant has acted imprudently. See Fed. Rule Civ. Proc. 12(b)(6); Ashcroft v. Iqbal, 556 U. S. 662 –680 (2009); Bell Atlantic Corp. v. Twombly, 550 U. S. 544 –563 (2007). Because the content of the duty of prudence turns on “the circumstances . . . prevailing” at the time the fiduciary acts, §1104(a)(1)(B), the appropriate inquiry will necessarily be context specific. The District Court in this case granted petitioners’ motion to dismiss the complaint because it held that re-spondents could not overcome the presumption of prudence. The Court of Appeals, by contrast, concluded that no presumption applied. And we agree with that conclusion. The Court of Appeals, however, went on to hold that respondents had stated a plausible duty-of-prudence claim. 692 F. 3d, at 419–420. The arguments made here, along with our review of the record, convince us that the judgment of the Court of Appeals should be vacated and the case remanded. On remand, the Court of Appeals should apply the pleading standard as discussed in Twombly and Iqbal in light of the following considerations. A Respondents allege that, as of July 2007, petitioners knew or should have known in light of publicly available information, such as newspaper articles, that continuing to hold and purchase Fifth Third stock was imprudent. App. 48–53. The complaint alleges, among other things, that petitioners “continued to allow the Plan’s investment in Fifth Third Stock even during the time that the stock price was declining in value as a result of [the] collapse of the housing market” and that “[a] prudent fiduciary facing similar circumstances would not have stood idly by as the Plan’s assets were decimated.” Id., at 53. In our view, where a stock is publicly traded, allegations that a fiduciary should have recognized from publicly available information alone that the market was over- or undervaluing the stock are implausible as a general rule, at least in the absence of special circumstances. Many investors take the view that “ ‘they have little hope of outperforming the market in the long run based solely on their analysis of publicly available information,’ ” and accordingly they “ ‘rely on the security’s market price as an unbiased assessment of the security’s value in light of all public information.’ ” Halliburton Co. v. Erica P. John Fund, Inc. ___ U. S. ___, ___ (2014) (slip op., at 11–12) (quoting Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U. S. ___, ___ (2013) (slip op., at 5)). ERISA fiduciaries, who likewise could reasonably see “little hope of outperforming the market . . . based solely on their analysis of publicly available information,” ibid., may, as a general matter, likewise prudently rely on the market price. In other words, a fiduciary usually “is not imprudent to assume that a major stock market . . . provides the best estimate of the value of the stocks traded on it that is available to him.” Summers v. State Street Bank & Trust Co., 453 F. 3d 404, 408 (CA7 2006); see also White, 714 F. 3d, at 992 (A fiduciary’s “fail[ure] to outsmart a presumptively efficient market . . . is . . . not a sound basis for imposing liability”); cf. Quan, 623 F. 3d, at 881 (“Fiduciaries are not expected to predict the future of the company stock’s performance”). We do not here consider whether a plaintiff could nonetheless plausibly allege imprudence on the basis of pub-licly available information by pointing to a special circum-stance affecting the reliability of the market price as “ ‘an unbiased assessment of the security’s value in light of all public information,’ ” Halliburton Co., supra, at ___ (slip op., at 12) (quoting Amgen Inc., supra, at ___ (slip op., at 5)), that would make reliance on the market’s valuation imprudent. In this case, the Court of Appeals held that the complaint stated a claim because respondents “allege that Fifth Third engaged in lending practices that were equivalent to participation in the subprime lending market, that Defendants were aware of the risks of such investments by the start of the class period, and that such risks made Fifth Third stock an imprudent investment.” 692 F. 3d, at 419–420. The Court of Appeals did not point to any special circumstance rendering reliance on the market price imprudent. The court’s decision to deny dismissal therefore appears to have been based on an erroneous understanding of the prudence of relying on market prices. B Respondents also claim that petitioners behaved imprudently by failing to act on the basis of nonpublic information that was available to them because they were Fifth Third insiders. In particular, the complaint alleges that petitioners had inside information indicating that the market was overvaluing Fifth Third stock and that they could have used this information to prevent losses to the fund by (1) selling the ESOP’s holdings of Fifth Third stock; (2) refraining from future stock purchases (including by removing the Plan’s ESOP option altogether); or (3) publicly disclosing the inside information so that the market would correct the stock price downward, with the result that the ESOP could continue to buy Fifth Third stock without paying an inflated price for it. See App. 17, 88–89, 113. To state a claim for breach of the duty of prudence on the basis of inside information, a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it. The following three points inform the requisite analysis. First, in deciding whether the complaint states a claim upon which relief can be granted, courts must bear in mind that the duty of prudence, under ERISA as under the common law of trusts, does not require a fiduciary to break the law. Cf. Restatement (Second) of Trusts §166, Comment a (“The trustee is not under a duty to the beneficiary to do an act which is criminal or tortious”). Federal securities laws “are violated when a corporate insider trades in the securities of his corporation on the basis of material, nonpublic information.” United States v. O’Hagan, 521 U. S. 642 –652 (1997). As every Court of Appeals to address the question has held, ERISA’s duty of prudence cannot require an ESOP fiduciary to perform an action—such as divesting the fund’s holdings of the employer’s stock on the basis of inside information—that would violate the securities laws. See, e.g., Rinehart v. Akers, 722 F. 3d 137, 146–147 (CA2 2013); Kirschbaum v. Reliant Energy, Inc., 526 F. 3d 243, 256 (CA5 2008); White, supra, at 992; Quan, supra, at 881–882, and n. 8; Lanfear v. Home Depot, Inc., 679 F. 3d 1267, 1282 (CA11 2012). To the extent that the Sixth Circuit denied dismissal based on the theory that the duty of prudence required petitioners to sell the ESOP’s holdings of Fifth Third stock, its denial of dismissal was erroneous. Second, where a complaint faults fiduciaries for failing to decide, on the basis of the inside information, to refrain from making additional stock purchases or for failing to disclose that information to the public so that the stock would no longer be overvalued, additional considerations arise. The courts should consider the extent to which an ERISA-based obligation either to refrain on the basis of inside information from making a planned trade or to disclose inside information to the public could conflict with the complex insider trading and corporate disclosure requirements imposed by the federal securities laws or with the objectives of those laws. Cf. 29 U. S. C. §1144(d) (“Nothing in this subchapter [which includes §1104] shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States . . . or any rule or regulation issued under any such law”); Black & Decker Disability Plan v. Nord, 538 U. S. 822, 831 (2003) (“Although Congress ‘expect[ed]’ courts would develop ‘a fed-eral common law of rights and obligations under ERISA-regulated plans,’ the scope of permissible judicial innova-tion is narrower in areas where other federal actors are engaged” (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 56 (1987) ; citation omitted)); Varity Corp., 516 U. S., at 506 (reserving the question “whether ERISA fiduciaries have any fiduciary duty to disclose truthful information on their own initiative, or in response to employee inquiries”). The U. S. Securities and Exchange Commission has not advised us of its views on these matters, and we believe those views may well be relevant. Third, lower courts faced with such claims should also consider whether the complaint has plausibly alleged that a prudent fiduciary in the defendant’s position could not have concluded that stopping purchases—which the market might take as a sign that insider fiduciaries viewed the employer’s stock as a bad investment—or publicly disclosing negative information would do more harm than good to the fund by causing a drop in the stock price and a concomitant drop in the value of the stock already held by the fund. * * * We leave it to the courts below to apply the foregoing to the complaint in this case in the first instance. The judgment of the Court of Appeals for the Sixth Circuit is vacated and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus FIFTH THIRD BANCORP et al. v. DUDENHOEFFER et al. certiorari to the united states court of appeals for the sixth circuit No. 12–751. Argued April 2, 2014—Decided June 25, 2014 Petitioner Fifth Third Bancorp maintains a defined-contribution retirement savings plan for its employees. Plan participants may direct their contributions into any of a number of investment options, including an “employee stock ownership plan” (ESOP), which invests its funds primarily in Fifth Third stock. Respondents, former Fifth Third employees and ESOP participants, filed this lawsuit against petitioners, Fifth Third and several of its officers who are alleged to be fiduciaries of the ESOP. The complaint alleges that petitioners breached the fiduciary duty of prudence imposed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. §1104(a)(1)(B). Specifically, the complaint alleges that petitioners should have known—on the basis of both publicly available information and inside information available to petitioners because they were Fifth Third officers—that Fifth Third stock was overpriced and excessively risky. It further alleges that a prudent fiduciary in petitioners’ position would have responded to this information by selling off the ESOP’s holdings of Fifth Third stock, refraining from purchasing more Fifth Third stock, or disclosing the negative inside information so that the market could correct the stock’s price downward. According to the complaint, petitioners did none of these things, and the price of Fifth Third stock ultimately fell, reducing respondents’ retirement savings. The District Court dismissed the complaint for failure to state a claim, but the Sixth Circuit reversed. It concluded that ESOP fiduciaries are entitled to a “presumption of prudence” that does not apply to other ERISA fiduciaries but that the presumption is an evidentiary one and therefore does not apply at the pleading stage. The court went on to hold that the complaint stated a claim for breach of fiduciary duty. Held: 1. ESOP fiduciaries are not entitled to any special presumption of prudence. Rather, they are subject to the same duty of prudence that applies to ERISA fiduciaries in general, §1104(a)(1)(B), except that they need not diversify the fund’s assets, §1104(a)(2). This conclusion follows from the relevant provisions of ERISA. Section 1104(a)(1)(B) “imposes a ‘prudent person’ standard by which to measure fiduciaries’ investment decisions and disposition of assets.” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 143, n. 10. Section 1104(a)(1)(C) requires ERISA fiduciaries to diversify plan assets. And §1104(a)(2) establishes the extent to which those duties are loosened in the ESOP context by providing that “the diversification requirement of [§1104(a)(1)(C)] and the prudence requirement (only to the extent that it requires diversification) of [§1104(a)(1)(B)] [are] not violated by acquisition or holding of [employer stock].” Section 1104(a)(2) makes no reference to a special “presumption” in favor of ESOP fiduciaries and does not require plaintiffs to allege that the employer was, e.g., on the “brink of collapse.” It simply modifies the duties imposed by §1104(a)(1) in a precisely delineated way. Thus, aside from the fact that ESOP fiduciaries are not liable for losses that result from a failure to diversify, they are subject to the duty of prudence like other ERISA fiduciaries. . 2. On remand, the Sixth Circuit should reconsider whether the complaint states a claim by applying the pleading standard as discussed in Ashcroft v. Iqbal, 556 U.S. 662, 677–680, and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554–563, in light of the following considerations. . (a) Where a stock is publicly traded, allegations that a fiduciary should have recognized on the basis of publicly available information that the market was overvaluing or undervaluing the stock are generally implausible and thus insufficient to state a claim under Twombly and Iqbal. . (b) To state a claim for breach of the duty of prudence, a complaint must plausibly allege an alternative action that the defendant could have taken, that would have been legal, and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it. Where the complaint alleges that a fiduciary was imprudent in failing to act on the basis of inside information, the analysis is informed by the following points. First, ERISA’s duty of prudence never requires a fiduciary to break the law, and so a fiduciary cannot be imprudent for failing to buy or sell stock in violation of the insider trading laws. Second, where a complaint faults fiduciaries for failing to decide, based on negative inside infor-mation, to refrain from making additional stock purchases or for failing to publicly disclose that information so that the stock would no longer be overvalued, courts should consider the extent to which imposing an ERISA-based obligation either to refrain from making a planned trade or to disclose inside information to the public could conflict with the complex insider trading and corporate disclosure requirements set forth by the federal securities laws or with the objectives of those laws. Third, courts confronted with such claims should consider whether the complaint has plausibly alleged that a prudent fiduciary in the defendant’s position could not have concluded that stopping purchases or publicly disclosing negative information would do more harm than good to the fund by causing a drop in the stock price and a concomitant drop in the value of the stock already held by the fund. . 692 F.3d 410, vacated and remanded. Breyer, J., delivered the opinion for a unanimous Court.

The Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. §1001 et seq., requires the fiduciary of a pension plan to act prudently in managing the plan's assets. §1104(a)(1)(B). This case focuses upon that duty of prudence as applied to fiduciaries of an employee stock ownership plan (ESOP), a type of pension plan that invests primarily in the stock of the company that employs plan participants. Respondents, former employees and ESOP participants, filed a putative class action in Federal District Court, alleging that petitioners, Fifth Third Bancorp, and various Fifth Third officers, who maintained a defined-contribution retirement savings plan (Plan) and whose assets are invested in 20 separate funds, including mutual funds and an ESOP, knew or should have known that Fifth Third stock was overvalued and excessively risky for two reasons. First, publicly available information (which petitioners knew because they were Fifth Third insiders) provided early warning signs that subprime lending, which formed a large part of Fifth Third's business, would soon leave creditors high and dry as the housing market collapsed and subprime borrowers became unable to pay off their mortgages. Second, nonpublic information indicated that the Plan officers had deceived the market by making material misstatements about the company's financial prospects, leading the market to overvalue the company stock, and so petitioners were paying more for that stock than it was worth. Respondents filed a partial recovery claim, and the District Court dismissed the lawsuit. The Court of Appeals reversed, holding that the presumption of a prudence is evidentiary only at the pleading stage, and that the allegations in the complaint were insufficient to overcome it. Held: The judgment is vacated and the case is remanded. ;. 692 F. 3d 410, vacated and remanded for application of the presumption in the first instance. (a) ERISA does not create a special statutory presumption of the prudence for ESOP fiduciars. ERISA defines that duty in terms of what a prudent person would do in the conduct of an enterprise of a like character and with like aims, and, in view of the specific purpose of ERISA to encourage the creation of ESOPs, the content of the duty must be context specific. . (b) Nor is there any merit to petitioners' contentions that the threat of costly duty-of-prudence lawsuits will deter companies from offering a ESOP to their employees, contrary to the stated intent of Congress. Congress pursued purposes other than the financial security of plan participants, such as tax incentives, and pursued them by pursuing them by promoting ESOP plans with tax incentives. Moreover, in light of the purpose of promoting employee ownership of employer stock, the mere fact that the plan documents waive the duty to the extent that it comes into conflict with investment in Fifth Third does not mean that the employee is to be expected to assert that continued ownership of the stock is likely to impair the plan. Pp. 472 U. S. 662-645. (c) The courts below should apply the pleading standard of the common law of trusts that the settlor can reduce or waive the prudent man standard of care by specific language in the trust instrument. To the extent the Sixth Circuit denied dismissal based on the theory that the duty required petitioners to sell the ESOP stock, that court should consider whether the duty was imprudent in failing to disclose inside information that would make reliance on the market's valuation imprudeent. In addition, lower courts faced with such claims should also consider whether, without some sort of special presumption, there is plausibly an alternative action that the defendant could have taken that would have been consistent with the securities laws and would not have viewed as more likely to harm the fund than to help it, and whether the complaint has plausibly alleged that a prudent fiduciario in the defendant's position could not have concluded that stopping purchases or publicly disclosing inside information would do more harm than good to the fund by causing a drop in stock price and a concomitant drop in the value of the stock already held by the fund. Finally, the lower courts should not apply a presumption of faith, which is an appropriate way to weed out meritless lawsuits or to provide the requisite defense-friendly standard. Although ERISA makes it impossible for a plaintiff to state a duty of prudence claim, no matter how meritorious, unless the employer is in very bad economic circumstances, such a rule does not readily divide the plausible sheep from the meritless goats. That important task can be better accomplished through careful, context-sensitive scrutiny of a complaint's allegations. Here, the court's decision to deny dismissal appears to have been based on an erroneous understanding of the prudence of relying on market prices. Furthermore, the courts should apply a pleading standard as discussed in Twombly and Iq

2013_12-10882

https://www.oyez.org/cases/2013/12-10882

. This Court has held that the Eighth and Fourteenth Amendments to the Constitution forbid the execution of persons with intellectual disability. Atkins v. Virginia, 536 U. S. 304, 321 (2002) . Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is foreclosed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional. I On February 21, 1978, Freddie Lee Hall, petitioner here, and his accomplice, Mark Ruffin, kidnaped, beat, raped, and murdered Karol Hurst, a pregnant, 21-year-old newlywed. Afterward, Hall and Ruffin drove to a convenience store they planned to rob. In the parking lot of the store, they killed Lonnie Coburn, a sheriff’s deputy who attempted to apprehend them. Hall received the death penalty for both murders, although his sentence for the Coburn murder was later reduced on account of insufficient evidence of premeditation. Hall v. Florida, 403 So. 2d 1319, 1321 (Fla. 1981) (per curiam). Hall argues that he cannot be executed because of his intellectual disability. Previous opinions of this Court have employed the term “mental retardation.” This opinion uses the term “intellectual disability” to describe the identical phenomenon. See Rosa’s Law, 124Stat. 2643 (changing entries in the U. S. Code from “mental retardation” to “intellectual disability”); Schalock et. al, The Renaming of Mental Retardation: Understanding the Change to the Term Intellectual Disability, 45 Intellectual & Developmental Disabilities 116 (2007). This change in terminology is approved and used in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders, one of the basic texts used by psychiatrists and other experts; the manual is often referred to by its initials “DSM,” followed by its edition number, e.g., “DSM–5.” See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed. 2013). When Hall was first sentenced, this Court had not yet ruled that the Eighth Amendment prohibits States from imposing the death penalty on persons with intellectual disability. See Penry v. Lynaugh, 492 U. S. 302, 340 (1989) . And at the time, Florida law did not consider intellectual disability as a statutory mitigating factor. After this Court held that capital defendants must be permitted to present nonstatutory mitigating evidence in death penalty proceedings, Hitchcock v. Dugger, 481 U. S. 393 –399 (1987), Hall was resentenced. Hall then presented substantial and unchallenged evidence of intellectual disability. School records indicated that his teachers identified him on numerous occasions as “[m]entally retarded.” App. 482–483. Hall had been prosecuted for a different, earlier crime. His lawyer in that matter later testified that the lawyer “[c]ouldn’t really understand anything [Hall] said.” Id., at 480. And, with respect to the murder trial given him in this case, Hall’s counsel recalled that Hall could not assist in his own defense because he had “ ‘a mental . . . level much lower than his age,’ ” at best comparable to the lawyer’s 4-year-old daughter. Brief for Petitioner 11. A number of medical clinicians testified that, in their professional opinion, Hall was “significantly retarded,” App. 507; was “mentally retarded,” id., at 517; and had levels of understanding “typically [seen] with toddlers,” id., at 523. As explained below in more detail, an individual’s ability or lack of ability to adapt or adjust to the requirements of daily life, and success or lack of success in doing so, is central to the framework followed by psychiatrists and other professionals in diagnosing intellectual disability. See DSM–5, at 37. Hall’s siblings testified that there was something “very wrong” with him as a child. App. 466. Hall was “slow with speech and . . . slow to learn.” Id., at 490. He “walked and talked long after his other brothers and sisters,” id., at 461, and had “great difficulty forming his words,” id., at 467. Hall’s upbringing appeared to make his deficits in adaptive functioning all the more severe. Hall was raised—in the words of the sentencing judge—“under the most horrible family circumstances imaginable.” Id., at 53. Al-though “[t]eachers and siblings alike immediately recognized [Hall] to be significantly mentally retarded . . . [t]his retardation did not garner any sympathy from his mother, but rather caused much scorn to befall him.” Id., at 20. Hall was “[c]onstantly beaten because he was ‘slow’ or because he made simple mistakes.” Ibid. His mother “would strap [Hall] to his bed at night, with a rope thrown over a rafter. In the morning, she would awaken Hall by hoisting him up and whipping him with a belt, rope, or cord.” Ibid. Hall was beaten “ten or fifteen times a week sometimes.” Id., at 477. His mother tied him “in a ‘croaker’ sack, swung it over a fire, and beat him,” “buried himin the sand up to his neck to ‘strengthen his legs,’ ” and “held a gun on Hall . . . while she poked [him] with sticks.” Hall v. Florida, 614 So. 2d 473, 480 (Fla. 1993) (Barkett, C. J., dissenting). The jury, notwithstanding this testimony, voted to sentence Hall to death, and the sentencing court adopted the jury’s recommendation. The court found that there was “substantial evidence in the record” to support the finding that “Freddie Lee Hall has been mentally retarded his entire life.” App. 46. Yet the court also “suspect[ed] that the defense experts [were] guilty of some professional overkill,” because “[n]othing of which the experts testified could explain how a psychotic, mentally-retarded, brain-damaged, learning-disabled, speech-impaired person could formulate a plan whereby a car was stolen and a convenience store was robbed.” Id., at 42. The sentencing court went on to state that, even assuming the expert testimony to be accurate, “the learning disabilities, mental retardation, and other mental difficulties . . . cannot be used to justify, excuse or extenuate the moral culpability of the defendant in this cause.” Id., at 56. Hall was again sentenced to death. The Florida Supreme Court affirmed, concluding that “Hall’s argument that his mental retardation provided a pretense of moral or legal justification” had “no merit.” Hall, 614 So. 2d, at 478. Chief Justice Barkett dissented, arguing that executing a person with intellectual disability violated the State Constitution’s prohibition on cruel and unusual punishment. Id., at 481–482. In 2002, this Court ruled that the Eighth Amendment prohibited the execution of persons with intellectual disability. Atkins v. Virginia, 536 U. S., at 321. On November 30, 2004, Hall filed a motion claiming that he had intellectual disability and could not be executed. More than five years later, Florida held a hearing to consider Hall’s motion. Hall again presented evidence of intellectual disability, including an IQ test score of 71. (Hall had received nine IQ evaluations in 40 years, with scores ranging from 60 to 80, Brief for Respondent 8, but the sentencing court excluded the two scores below 70 for evidentiary reasons, leaving only scores between 71 and 80. See App. 107; 109 So. 3d 704, 707 (Fla. 2012)). In response, Florida argued that Hall could not be found intellectually disabled because Florida law requires that, as a threshold matter, Hall show an IQ test score of 70 or below before presenting any additional evidence of his intellectual disability. App. 278–279 (“[U]nder the law, if an I. Q. is above 70, a person is not mentally retarded”). The Florida Supreme Court rejected Hall’s appeal and held that Florida’s 70-point threshold was constitutional. 109 So. 3d, at 707–708. This Court granted certiorari. 571 U. S. ___ (2013). II The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Fourteenth Amendment applies those restrictions to the States. Roper v. Simmons, 543 U. S. 551, 560 (2005) ; Furman v. Georgia, 408 U. S. 238 –240 (1972) (per curiam). “By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” Roper, supra, at 560; see also Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion) (“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man”). The Eighth Amendment “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” Weems v. United States, 217 U. S. 349, 378 (1910) . To enforce the Constitution’s protection of human dignity, this Court looks to the “evolving standards of decency that mark the progress of a maturing society.” Trop, supra, at 101. The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be. This is to affirm that the Nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force. The Eighth Amendment prohibits certain punishments as a categorical matter. No natural-born citizen may be denaturalized. Ibid. No person may be sentenced to death for a crime committed as a juvenile. Roper, supra, at 578. And, as relevant for this case, persons with intellectual disability may not be executed. Atkins, 536 U. S., at 321. No legitimate penological purpose is served by executing a person with intellectual disability. Id., at 317, 320. To do so contravenes the Eighth Amendment, for to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being. “[P]unishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.” Kennedy v. Louisiana, 554 U. S. 407, 420 (2008) . Rehabilitation, it is evident, is not an applicable rationale for the death penalty. See Gregg v. Georgia, 428 U. S. 153, 183 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). As for deterrence, those with intellectual disability are, by reason of their condition, likely unable to make the calculated judgments that are the premise for the deterrence rationale. They have a “diminished ability” to “process information, to learn from experience, to engage in logical reasoning, or to control impulses . . . [which] make[s] it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information.” Atkins, 536 U. S., at 320. Retributive values are also ill-served by executing those with intellectual disability. The diminished capacity of the intellectually disabled lessens moral culpability and hence the retributive value of the punishment. See id., at 319 (“If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution”). A further reason for not imposing the death penalty on a person who is intellectually disabled is to protect the integrity of the trial process. These persons face “a special risk of wrongful execution” because they are more likely to give false confessions, are often poor witnesses, and are less able to give meaningful assistance to their counsel. Id., at 320–321. This is not to say that under current law persons with intellectual disability who “meet the law’s requirements for criminal responsibility” may not be tried and punished. Id., at 306. They may not, however, receive the law’s most severe sentence. Id., at 318. The question this case presents is how intellectual disability must be defined in order to implement these principles and the holding of Atkins. To determine if Florida’s cutoff rule is valid, it is proper to consider the psychiatric and professional studies that elaborate on the purpose and meaning of IQ scores to determine how the scores relate to the holding of Atkins. This in turn leads to a better understanding of how the legislative policies of various States, and the holdings of state courts, implement the Atkins rule. That understanding informs our determination whether there is a consensus that instructs how to decide the specific issue presented here. And, in conclusion, this Court must express its own independent determination reached in light of the instruction found in those sources and authorities. III A That this Court, state courts, and state legislatures consult and are informed by the work of medical experts in determining intellectual disability is unsurprising. Those professionals use their learning and skills to study and consider the consequences of the classification schemes they devise in the diagnosis of persons with mental or psychiatric disorders or disabilities. Society relies upon medical and professional expertise to define and explain how to diagnose the mental condition at issue. And the definition of intellectual disability by skilled professionals has implications far beyond the confines of the death penalty: for it is relevant to education, access to social programs, and medical treatment plans. In determining who qualifies as intellectually disabled, it is proper to consult the medical community’s opinions. As the Court noted in Atkins, the medical community defines intellectual disability according to three criteria: significantly subaverage intellectual functioning, deficits in adaptive functioning (the inability to learn basic skills and adjust behavior to changing circumstances), and onset of these deficits during the developmental period. See id., at 308, n. 3; DSM–5, at 33; Brief for American Psychological Association et al. as Amici Curiae 12–13 (hereinafter APA Brief). This last factor, referred to as “age of onset,” is not at issue. The first and second criteria—deficits in intellectual functioning and deficits in adaptive functioning—are central here. In the context of a formal assessment, “[t]he existence of concurrent deficits in intellectual and adaptive functioning has long been the defining characteristic of intellectual disability.” Id., at 11. On its face, the Florida statute could be consistent with the views of the medical community noted and discussed in Atkins. Florida’s statute defines intellectual disability for purposes of an Atkins proceeding as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” Fla. Stat. §921.137(1) (2013). The statute further defines “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test.” Ibid. The mean IQ test score is 100. The concept of standard deviation describes how scores are dispersed in a population. Standard deviation is distinct from standard error of measurement, a concept which describes the reliability of a test and is discussed further below. The standard deviation on an IQ test is approximately 15 points, and so two standard deviations is approximately 30 points. Thus a test taker who performs “two or more standard deviations from the mean” will score approximately 30 points below the mean on an IQ test, i.e., a score of approximately 70 points. On its face this statute could be interpreted consistently with Atkins and with the conclusions this Court reaches in the instant case. Nothing in the statute precludes Florida from taking into account the IQ test’s standard error of measurement, and as discussed below there is evidence that Florida’s Legislature intended to include the measurement error in the calculation. But the Florida Supreme Court has interpreted the provisions more nar-rowly. It has held that a person whose test score is above 70, including a score within the margin for measurement error, does not have an intellectual disability and is barred from presenting other evidence that would show his faculties are limited. See Cherry v. State, 959 So. 2d 702, 712–713 (Fla. 2007) (per curiam). That strict IQ test score cutoff of 70 is the issue in this case. Pursuant to this mandatory cutoff, sentencing courts cannot consider even substantial and weighty evidence of intellectual disability as measured and made manifest by the defendant’s failure or inability to adapt to his social and cultural environment, including medical histories, behavioral records, school tests and reports, and testimony regarding past behavior and family circumstances. This is so even though the medical community accepts that all of this evidence can be probative of intellectual disability, including for individuals who have an IQ test score above 70. See APA Brief 15–16 (“[T]he relevant clinical authorities all agree that an individual with an IQ score above 70 may properly be diagnosed with intellectual disability if significant limitations in adaptive functioning also exist”); DSM–5, at 37 (“[A] person with an IQ score above 70 may have such severe adaptive behavior problems . . . that the person’s actual functioning is comparable to that of individuals with a lower IQ score”). Florida’s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence. It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise. The professionals who design, administer, and interpret IQ tests have agreed, for years now, that IQ test scores should be read not as a single fixed number but as a range. See D. Wechsler, The Measurement of Adult Intelligence 133 (3d ed. 1944) (reporting the range of error on an early IQ test). Each IQ test has a “standard error of measurement,” ibid., often referred to by the abbreviation “SEM.” A test’s SEM is a statistical fact, a reflection of the inherent imprecision of the test itself. See R. Furr & V. Bacharach, Psychometrics 118 (2d ed. 2014) (identifying the SEM as “one of the most important concepts in measurement theory”). An individual’s IQ test score on any given exam may fluctuate for a variety of reasons. These include the test-taker’s health; practice from earlier tests; the environment or location of the test; the examiner’s demeanor; the subjective judgment involved in scoring certain questions on the exam; and simple lucky guessing. See American Association on Intellectual and Developmental Disabilities, R. Schalock et al., User’s Guide To Accompany the 11th Edition of Intellectual Disability: Definition, Classification, and Systems of Supports 22 (2012) (hereinafter AAIDD Manual); A. Kaufman, IQ Testing 101, pp. 138–139 (2009). The SEM reflects the reality that an individual’s intellectual functioning cannot be reduced to a single numerical score. For purposes of most IQ tests, the SEM means that an individual’s score is best understood as a range of scores on either side of the recorded score. The SEM allows clinicians to calculate a range within which one may say an individual’s true IQ score lies. See APA Brief 23 (“SEM is a unit of measurement: 1 SEM equates to a confidence of 68% that the measured score falls within a given score range, while 2 SEM provides a 95% confidence level that the measured score is within a broader range”). A score of 71, for instance, is generally considered to reflect a range between 66 and 76 with 95% confidence and a range of 68.5 and 73.5 with a 68% confidence. See DSM–5, at 37 (“Individuals with intellectual disability have scores of approximately two standard deviations or more below the population mean, including a margin for measurement error (generally +5 points). . . . [T]his involves a score of 65–75 (70 ± 5)”); APA Brief 23 (“For example, the average SEM for the WAIS-IV is 2.16 IQ test points and the average SEM for the Stanford-Binet 5 is 2.30 IQ test points (test manuals report SEMs by different age groupings; these scores are similar, but not identical, often due to sampling error)”). Even when a person has taken multiple tests, each separate score must be assessed using the SEM, and the analysis of multiple IQ scores jointly is a complicated endeavor. See Schneider, Principles of Assessment of Aptitude and Achievement, in The Oxford Handbook of Child Psychological Assessment 286, 289–291, 318 (D. Saklofske, C. Reynolds, V. Schwean, eds. 2013). In addition, because the test itself may be flawed, or administered in a consistently flawed manner, multiple examinations may result in repeated similar scores, so that even a consistent score is not conclusive evidence of intellectual functioning. Despite these professional explanations, Florida law used the test score as a fixed number, thus barring further consideration of other evidence bearing on the question of intellectual disability. For professionals to diagnose—and for the law then to determine—whether an intellectual disability exists once the SEM applies and the individual’s IQ score is 75 or below the inquiry would consider factors indicating whether the person had deficits in adaptive functioning. These include evidence of past performance, environment, and upbringing. B A significant majority of States implement the protections of Atkins by taking the SEM into account, thus acknowledging the error inherent in using a test score without necessary adjustment. This calculation provides “objective indicia of society’s standards” in the context of the Eighth Amendment. Roper, 543 U. S., at 563. Only the Kentucky and Virginia Legislatures have adopted a fixed score cutoff identical to Florida’s. Ky. Rev. Stat. Ann. §532.130(2) (Lexis Supp. 2013); Bowling v. Commonwealth, 163 S. W. 3d 361, 375 (Ky. 2005); Va. Code Ann. §19.2–264.3:1.1 (Lexis Supp. 2013); Johnson v. Commonwealth, 267 Va. 53, 75, 591 S. E. 2d 47, 59 (2004), vacated and remanded on other grounds, 544 U. S. 901 (2005) . Alabama also may use a strict IQ score cutoff at 70, although not as a result of legislative action. See Smith v. State, 71 So. 3d 12, 20 (Ala. Crim. App. 2008) (“The Alabama Supreme Court . . . did not adopt any ‘margin of error’ when examining a defendant’s IQ score”). Petitioner does not question the rule in States which use a bright-line cutoff at 75 or greater, Tr. of Oral Arg. 9, and so they are not included alongside Florida in this analysis. In addition to these States, Arizona, Delaware, Kansas, North Carolina, and Washington have statutes which could be interpreted to provide a bright-line cutoff leading to the same result that Florida mandates in its cases. See Ariz. Rev. Stat. Ann. §13–753(F) (West 2013); Del. Code Ann. Tit. 11, §4209(d)(3) (2012 Supp.); Kan. Stat. Ann. §76–12b01 (2013 Supp.); N. C. Gen. Stat. Ann. §15A–2005 (Lexis 2013); Wash. Rev. Code §10.95.030(2)(c) (2012). That these state laws might be interpreted to require a bright-line cutoff does not mean that they will be so interpreted, however. See, e.g., State v. Vela, 279 Neb. 94, 126, 137, 777 N. W. 2d 266, 292, 299 (2010) (Although Nebraska’s statute specifies “[a]n intelligence quotient of seventy or below on a reliably administered intelligence quotient test,” “[t]he district court found that [the defendant’s] score of 75 on the [IQ test], considered in light of the standard error of measurement, could be considered as subaverage general intellectual functioning for purposes of diagnosing mental retardation”). Arizona’s statute appears to set a broad statutory cutoff at 70, Ariz. Rev. Stat. Ann. §13–753(F) (West 2013), but another provision instructs courts to “take into account the margin of error for a test administered.” Id. at §14-753(K)(5). How courts are meant to interpret the statute in a situation like Hall’s is not altogether clear. The principal Arizona case on the matter, State v. Roque, 141 P. 3d 368, (Ariz 2006), states that “the statute accounts for margin of error by requiring multiple tests,” and that “if the defendant achieves a full-scale score of 70 or below on any one of the tests, then the court proceeds to a hearing.” Id. at 403. But that case also notes that the defendant had an IQ score of 80, well outside the margin of error, and that all but one of the sub-parts of the IQ test were “above 75.” Id. Kansas has not had an execution in almost five decades, and so its laws and jurisprudence on this issue are unlikely to receive attention on this specific question. See Atkins, 536 U. S., at 316 (“[E]ven in those States that allow the execution of mentally retarded offenders, the practiceis uncommon. Some States . . . continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States”). Delaware has executed three individuals in the past decade, while Washington has executed one person, and has recently suspended its death penalty. None of the four individuals executed recently in those States appears to have brought a claim similar to that advanced here. Thus, at most nine States mandate a strict IQ score cutoff at 70. Of these, four States (Delaware, Kansas, North Carolina, and Washington) appear not to have considered the issue in their courts. On the other side of the ledger stand the 18 States that have abolished the death penalty, either in full or for new offenses, and Oregon, which has suspended the death penalty and executed only two individuals in the past 40 years. See Roper, 543 U. S., at 574 (“[The] Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty”). In those States, of course, a person in Hall’s positioncould not be executed even without a finding of intellectual disability. Thus in 41 States an individual in Hall’sposition—an individual with an IQ score of 71—would not be deemed automatically eligible for the death penalty. These aggregate numbers are not the only considerations bearing on a determination of consensus. Consistency of the direction of change is also relevant. See id., at565–566 (quoting Atkins, supra, at 315). Since Atkins, many States have passed legislation to comply with the constitutional requirement that persons with intellectual disability not be executed. Two of these States, Virginia and Delaware, appear to set a strict cutoff at 70, although as discussed, Delaware’s courts have yet to interpret the law. In contrast, at least 11 States have either abolished the death penalty or passed legislation allowing defendants to present additional evidence of intellectual disability when their IQ test score is above 70. Since Atkins, five States have abolished the death penalty through legislation. See 2012 Conn. Pub. Acts no. 12–5; Ill. Comp. Stat. ch. 725, §119–1 (West 2012); Md. Correc. Servs. Code Ann. §3–901 et seq. (Lexis 2008); N. J. Stat. Ann. §2C:11–3(b)(1) (West Supp. 2013); 2009 N. M. Laws ch. 11, §§5–7. In addition, the New York Court of Appeals invalidated New York’s death penalty under the State Constitution in 2004, see People v. LeValle, 3 N. Y. 3d 88, 817 N. E. 2d 341 (2004), and legislation has not been passed to reinstate it. And when it did impose the death penalty, New York did not employ an IQ cutoff in determining intellectual disability. N. Y. Crim. Proc. Law Ann. §400.27(12)(e) (West 2005). In addition to these States, at least five others have passed legislation allowing a defendant to present additional evidence of intellectual disability even when an IQ test score is above 70. See Cal. Penal Code Ann. §1376 (West Supp. 2014) (no IQ cutoff); Idaho Code §19–2515A (Lexis Supp. 2013) (“seventy (70) or below”); Pizzutto v. State, 146 Idaho 720, 729, 202 P. 3d 642, 651 (2008) (“The alleged error in IQ testing is plus or minus five points. The district court was entitled to draw reasonable inferences from the undisputed facts”); La. Code Crim. Proc. Ann., Art. 905.5.1 (West Supp. 2014) (no IQ cutoff); Nev. Rev. Stat. §174.098.7 (2013) (no IQ cutoff); Utah Code Ann §77–15a–102 (Lexis 2012) (no IQ cutoff). The U. S. Code likewise does not set a strict IQ cutoff. See 18 U. S. C. §3596(c). And no State that previously allowed defendants with an IQ score over 70 to present additional evidence of intellectual disability has modified its law to create a strict cutoff at 70. Cf. Roper, supra, at 566 (“Since Stanford v. Kentucky, 492 U. S. 361 (1989) , no State that previously prohibited capital punishment for juveniles has reinstated it”). In summary, every state legislature to have considered the issue after Atkins—save Virginia’s—and whose law has been interpreted by its courts has taken a position contrary to that of Florida. Indeed, the Florida Legislature, which passed the relevant legislation prior to Atkins, might well have believed that its law would not createa fixed cutoff at 70. The staff analysis accompanyingthe 2001 bill states that it “does not contain a set IQlevel . . . . Two standard deviations from these tests is ap-proximately a 70 IQ, although it can be extended up to 75.” Fla. Senate Staff Analysis and Economic Impact Statement, CS/SB 238, p. 11 (Feb. 14, 2001). But the Florida Supreme Court interpreted the law to require a bright-line cutoff at 70, see Cherry, 959 So. 2d, at 712–713, and the Court is bound by that interpretation. The rejection of the strict 70 cutoff in the vast majority of States and the “consistency in the trend,” Roper, supra, at 567, toward recognizing the SEM provide strong evidence of consensus that our society does not regard this strict cutoff as proper or humane. C Atkins itself acknowledges the inherent error in IQ testing. It is true that Atkins “did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation” falls within the protection of the Eighth Amendment. Bobby v. Bies, 556 U. S. 825, 831 (2009) . In Atkins, the Court stated: “Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright with regard to insanity, ‘we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ ” 536 U. S., at 317 (quoting Ford v. Wainwright, 477 U. S. 399 –417 (1986); citation omitted). As discussed above, the States play a critical role in advancing protections and providing the Court with information that contributes to an understanding of how intellectual disability should be measured and assessed. But Atkins did not give the States unfettered discretion to define the full scope of the constitutional protection. The Atkins Court twice cited definitions of intellectual disability which, by their express terms, rejected a strict IQ test score cutoff at 70. Atkins first cited the definition provided in the DSM–IV: “ ‘Mild’ mental retardation is typically used to describe people with an IQ level of 50–55 to approximately 70.” 536 U. S., at 308, n. 3 (citing Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000)). The Court later noted that “ ‘an IQ between 70 and 75 or lower . . . is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition.’ ” 536 U. S., at 309, n. 5. Furthermore, immediately after the Court declared that it left “ ‘to the States the task of developing appropriate ways to enforce the constitutional restriction,’ ” id., at 317, the Court stated in an accompanying footnote that “[t]he [state] statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions,” ibid. Thus Atkins itself not only cited clinical definitions for intellectual disability but also noted that the States’ standards, on which the Court based its own conclusion, conformed to those definitions. In the words of Atkins, those persons who meet the “clinical definitions” of intellectual disability “by definition . . . have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.” Id., at 318. Thus, they bear “diminish[ed] . . . personal culpability.” Ibid. The clinical definitions of intellectual disability, which take into account that IQ scores represent a range, not a fixed number, were a fundamental premise of Atkins. And those clinical definitions have long included the SEM. See Diagnostic and Statistical Manual of Mental Disorders 28 (rev. 3d ed. 1987) (“Since any measurement is fallible, an IQ score is generally thought to involve an error of measurement of approximately five points; hence, an IQ of 70 is considered to represent a band or zone of 65 to 75. Treating the IQ with some flexibility permits inclusion in the Mental Retardation category of people with IQs somewhat higher than 70 who exhibit significant deficits in adaptive behavior”). Respondent argues that the current Florida law was favorably cited by the Atkins Court. See Brief for Respondent 18 (“As evidence of the national consensus, the Court specifically cited Florida’s statute at issue here, which has not substantively changed”). While Atkins did refer to Florida’s law in a citation listing States which had outlawed the execution of the intellectually disabled, 536 U. S., at 315, that fleeting mention did not signal the Court’s approval of Florida’s current understanding of the law. As discussed above, when Atkins was decided the Florida Supreme Court had not yet interpreted the law to require a strict IQ cutoff at 70. That new interpretation runs counter to the clinical definition cited throughout Atkins and to Florida’s own legislative report indicating this kind of cutoff need not be used. Respondent’s argument also conflicts with the logic of Atkins and the Eighth Amendment. If the States were to have complete autonomy to define intellectual disability as they wished, the Court’s decision in Atkins could become a nullity, and the Eighth Amendment’s protection of human dignity would not become a reality. This Court thus reads Atkins to provide substantial guidance on the definition of intellectual disability. D The actions of the States and the precedents of this Court “give us essential instruction,” Roper, 543 U. S., at 564, but the inquiry must go further. “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Coker v. Georgia, 433 U. S. 584, 597 (1977) (plurality opinion). That exercise of independent judgment is the Court’s judicial duty. See Roper, supra, at 574 (“[T]o the extent Stanford was based on a rejection of the idea that this Court is required to bring its independent judgment to bear on the proportionality of the death penalty for a particular class of crimes or offenders, it suffices to note that this rejection was inconsistent with prior Eighth Amendment decisions” (citation omitted). In this Court’s independent judgment, the Florida statute, as interpreted by its courts, is unconstitutional. In addition to the views of the States and the Court’s precedent, this determination is informed by the views of medical experts. These views do not dictate the Court’s decision, yet the Court does not disregard these informed assessments. See Kansas v. Crane, 534 U. S. 407, 413 (2002) (“[T]he science of psychiatry . . . informs but does not control ultimate legal determinations . . .”). It is the Court’s duty to interpret the Constitution, but it need not do so in isolation. The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic framework. Atkins itself points to the diagnostic criteria employed by psychiatric professionals. And the professional community’s teachings are of particular help in this case, where no alternative definition of intellectual disability is presented and where this Court and the States have placed substantial reliance on the expertise of the medical profession. By failing to take into account the SEM and setting a strict cutoff at 70, Florida “goes against the unanimous professional consensus.” APA Brief 15. Neither Florida nor its amici point to a single medical professional who supports this cutoff. The DSM–5 repudiates it: “IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real-life situations and mastery of practical tasks.” DSM–5, at 37. This statement well captures the Court’s independent assessment that an individual with an IQ test score “between 70 and 75 or lower,” Atkins, supra, at 309, n. 5, may show intellectual disability by presenting additional evidence regarding difficulties in adaptive functioning. The flaws in Florida’s law are the result of the inherent error in IQ tests themselves. An IQ score is an approximation, not a final and infallible assessment of intellectual functioning. See APA Brief 24 (“[I]t is standard pyschometric practice to report the ‘estimates of relevant reliabilities and standard errors of measurement’ when reporting a test score”); ibid. (the margin of error is “inherent to the accuracy of IQ scores”); Furr, Psychometrics, at 119 (“[T]he standard error of measurement is an important psychometric value with implications for applied measurement”). SEM is not a concept peculiar to the psychiatric profession and IQ tests. It is a measure that is recognized and relied upon by those who create and devise tests of all sorts. Id., at 118 (identifying the SEM as “one of the most important concepts in measurement theory”). This awareness of the IQ test’s limits is of particular importance when conducting the conjunctive assessment necessary to assess an individual’s intellectual ability. See American Association on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Supports 40 (11th ed. 2010) (“It must be stressed that the diagnosis of [intellectual disability] is intended to reflect a clinical judgment rather than an actuarial determination”). Intellectual disability is a condition, not a number. See DSM–5, at 37. Courts must recognize, as does the medical community, that the IQ test is imprecise. This is not to say that an IQ test score is unhelpful. It is of considerable significance, as the medical community recognizes. But in using these scores to assess a defendant’s eligibility for the death penalty, a State must afford these test scores the same studied skepticism that those who design and use the tests do, and understand that an IQ test score represents a range rather than a fixed number. A State that ignores the inherent imprecision of these tests risks executing a person who suffers from intellectual disability. See APA Brief 17 (“Under the universally accepted clinical standards for diagnosing intellectual disability, the court’s determination that Mr. Hall is not intellectually disabled cannot be considered valid”). This Court agrees with the medical experts that when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. It is not sound to view a single factor as dispositive of a conjunctive and interrelated assessment. See DSM–5, at 37 (“[A] person with an IQ score above 70 may have such severe adaptive behavior problems . . . that the person’s actual functioning is comparable to that of individuals with a lower IQ score”). The Florida statute, as interpreted by its courts, misuses IQ score on its own terms; andthis, in turn, bars consideration of evidence that must be considered in determining whether a defendant in a capital case has intellectual disability. Florida’s rule is invalid under the Constitution’s Cruel and Unusual Punishments Clause. E Florida seeks to execute a man because he scored a 71 instead of 70 on an IQ test. Florida is one of just a few States to have this rigid rule. Florida’s rule misconstrues the Court’s statements in Atkins that intellectually dis-ability is characterized by an IQ of “approximately 70.” 536U. S., at 308, n. 3. Florida’s rule is in direct opposition to the views of those who design, administer, and interpret the IQ test. By failing to take into account the standard error of measurement, Florida’s law not only contradicts the test’s own design but also bars an essential part of a sentencing court’s inquiry into adaptive functioning. Freddie Lee Hall may or may not be intellectually dis-abled, but the law requires that he have the opportunity topresent evidence of his intellectual disability, including deficits in adaptive functioning over his lifetime. The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects. The judgment of the Florida Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus HALL v. FLORIDA certiorari to the supreme court of florida No. 12–10882. Argued March 3, 2014—Decided May 27, 2014 After this Court held that the Eighth and Fourteenth Amendments forbid the execution of persons with intellectual disability, see Atkins v. Virginia, 536 U.S. 304, 321, Hall asked a Florida state court to vacate his sentence, presenting evidence that included an IQ test score of 71. The court denied his motion, determining that a Florida statute mandated that he show an IQ score of 70 or below before being permitted to present any additional intellectual disability evidence. The State Supreme Court rejected Hall’s appeal, finding the State’s 70-point threshold constitutional. Held: The State’s threshold requirement, as interpreted by the Florida Supreme Court, is unconstitutional. . (a) The Eighth Amendment, which “reaffirms the duty of the government to respect the dignity of all persons,” Roper v. Simmons, 543 U.S. 551, 560, prohibits the execution of persons with intellectual disability. No legitimate penological purpose is served by executing the intellectually disabled. Atkins, 563 U. S., at 317, 320. Prohibiting such executions also protects the integrity of the trial process for individuals who face “a special risk of wrongful execution” because they are more likely to give false confessions, are often poor witnesses, and are less able to give meaningful assistance to their counsel. Id., at 320–321. In determining whether Florida’s intellectual disability definition implements these principles and Atkins’ holding, it is proper to consider the psychiatric and professional studies that elaborate on the purpose and meaning of IQ scores and how the scores relate to Atkins, and to consider how the several States have implemented Atkins. . (b) Florida’s rule disregards established medical practice. On its face, Florida’s statute could be consistent with the views of the medical community discussed in Atkins and with the conclusions reached here. It defines intellectual disability as the existence of concurrent deficits in intellectual and adaptive functioning, long the defining characteristic of intellectual disability. See Atkins, supra, at 308. And nothing in the statute precludes Florida from considering an IQ test’s standard error of measurement (SEM), a statistical fact reflecting the test’s inherent imprecision and acknowledging that an individual score is best understood as a range, e.g., five points on either side of the recorded score. As interpreted by the Florida Supreme Court, however, Florida’s rule disregards established medical practice in two interrelated ways: It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts would consider other evidence; and it relies on a purportedly scientific measurement of a defendant’s abilities, while refusing to recognize that measurement’s inherent imprecision. While professionals have long agreed that IQ test scores should be read as a range, Florida uses the test score as a fixed number, thus barring further consideration of other relevant evidence, e.g., deficits in adaptive functioning, including evidence of past performance, environment, and upbringing. . (c) The rejection of a strict 70-point cutoff in the vast majority of States and a “consistency in the trend,” Roper, supra, at 567, toward recognizing the SEM provide strong evidence of consensus that society does not regard this strict cutoff as proper or humane. At most, nine States mandate a strict IQ score cutoff at 70. Thus, in 41 States, an individual in Hall’s position would not be deemed automatically eligible for the death penalty. The direction of change has been consistent. Since Atkins, many States have passed legislation to comply with the constitutional requirement that persons with intellectual disability not be executed. Two of those States appear to set a strict cutoff at 70, but at least 11 others have either abolished the death penalty or passed legislation allowing defendants to present additional intellectual disability evidence when their IQ score is above 70. Every state legislature, save one, to have considered the issue after Atkins and whose law has been interpreted by its courts has taken a position contrary to Florida’s. . (d) Atkins acknowledges the inherent error in IQ testing and provides substantial guidance on the definition of intellectual disability. The States play a critical role in advancing the protections of Atkins and providing this Court with an understanding of how intellectual disability should be measured and assessed, but Atkins did not give them unfettered discretion to define the full scope of the constitutional protection. Clinical definitions for intellectual disability which, by their express terms, rejected a strict IQ test score cutoff at 70, and which have long included the SEM, were a fundamental premise of Atkins. See 536 U. S., at 309, nn. 3, 5. A fleeting mention of Florida in a citation listing States that had outlawed the execution of the intellectually disabled, id., at 315, did not signal the Atkins Court’s approval of the State’s current understanding of its law, which had not yet been interpreted by the Florida Supreme Court to require a strict 70-point cutoff. . (e) When a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. This legal determination of intellectual disability is distinct from a medical diagnosis but is informed by the medical community’s diagnostic framework, which is of particular help here, where no alternative intellectual disability definition is presented, and where this Court and the States have placed substantial reliance on the medical profession’s expertise. . 109 So. 3d 704, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.

Petitioner, a Florida prisoner, was sentenced to death for kidnaping, beating, raping, and murdering Karol Hurst, a pregnant, 21-year-old newlywed, and driving to a convenience store where he planned to rob. At the time, Florida law required that a prisoner with intellectual disability show an IQ test score of 70 or below before presenting any additional evidence of his intellectual disability. The Florida Supreme Court affirmed, holding that the 70-point threshold was constitutional. More than five years later, petitioner filed a motion claiming that he had intellectual disability and could not be executed. At a hearing, petitioner again presented evidence of intellectual disability, including an IQ score of 71. The sentencing court excluded the two scores below 70 for evidentiary reasons, leaving only scores between 71 and 80. In response to Florida's argument that petitioner could not be found intellectually disabled because Florida law requires that, as a threshold matter, petitioner show a test score 70 before presenting additional evidence, petitioner was resentenced. Thereafter, petitioner, who had been prosecuted for a different, earlier crime, moved to be executed, and, at a hearing later held to consider his motion, he again presented such evidence. Petitioner was again convicted, but this time the State Supreme Court ultimately affirmed, concluding that petitioner had no merit. Held: The judgment is reversed, and the case is remanded. ;;. 618 So. 2d 473 (Fla. 1990) (per curiam). (a) The Florida statute, on its face, could be interpreted consistently with Atkins v. Virginia, 536 U. S. 636 (at), and with the conclusions this Court reaches in the instant case. Nothing in the statute precludes Florida from taking into account the IQ test scores standard error of measurement, and as discussed below there is evidence that Florida's Legislature intended to include the measurement error in the calculation. However, Florida has held that a person whose test score is above 70, including a score within the margin for measurement error, does not have an intellectual disability and is barred from presenting other evidence that would show his faculties are limited. . (b) In using IQ scores to assess a defendant's eligibility for the death penalty, a State must afford the test scores the same studied skepticism that those who design and use the tests do, and understand that the test represents a range rather than a fixed number. Although the medical community accepts that all of this evidence can be probative of intellectual disabilities, including evidence of past performance, environment, and upbringing, it does not provide strong evidence of consensus that our society does not regard the strict 70 cutoff as proper or humane. Thus, every state legislature to have considered the issue after Atkins, and whose law has been interpreted by its courts, has taken a position contrary to that of Florida. At most nine States mandate a strict IQ score cutoff at 70. A significant majority of States implement the protections of Atkins by taking the SEM into account, thus acknowledging the inherent imprecision of the tests, and by refusing to recognize that the IQ score is an imprecise number on its own terms. By failing to take account the standard error measurement, Florida not only contradicts the test's own design but also bars an essential part of a sentencing court inquiry into adaptive functioning. The law also contravenes the Nation's commitment to dignity and its duty to teach human decency as the mark of a civilized world. This Court thus reads Atkins to provide substantial guidance on the definition of the term intellectual disability.. (c) To determine if Florida's cutoff rule is valid, it is proper to consider the psychiatric and professional studies that elaborate on the purpose and meaning of IQ scores, and to a better understanding of how the legislative policies of various States and the holdings of state courts, implement the Atkins rule. That understanding informs the determination whether there is a consensus in the Court that this issue is presented in its own determination of how to decide the issue. P.. No legitimate penological purpose is served by executing an intellectually disabled person. To do so contraves the Eighth Amendment, for to impose the harshest of punishments on such a person violates his or her inherent dignity as a human being. Nor does the Constitution protect the basic dignity that the Constitution protects. See, e.g., Coker v. Georgia, 433 U.S. 584, 597 (plurality opinion). .

2013_13-317

https://www.oyez.org/cases/2013/13-317

. Investors can recover damages in a private securities fraud action only if they prove that they relied on the defendant’s misrepresentation in deciding to buy or sell a company’s stock. In Basic Inc. v. Levinson, 485 U. S. 224 (1988) , we held that investors could satisfy this reliance requirement by invoking a presumption that the price of stock traded in an efficient market reflects all public, material information—including material misstatements. In such a case, we concluded, anyone who buys or sells the stock at the market price may be considered to have relied on those misstatements. We also held, however, that a defendant could rebut this presumption in a number of ways, including by showing that the alleged misrepresentation did not actually affect the stock’s price—that is, that the misrepresentation had no “price impact.” The questions presented are whether we should overrule or modify Basic’s presumption of reliance and, if not, whether defendants should nonetheless be afforded an opportunity in securities class action cases to rebut the presumption at the class certification stage, by showing a lack of price impact. I Respondent Erica P. John Fund, Inc. (EPJ Fund), is the lead plaintiff in a putative class action against Halliburton and one of its executives (collectively Halliburton) alleging violations of section 10(b) of the Securities Exchange Act of 1934, 48Stat. 891, 15 U. S. C. §78j(b), and Securities and Exchange Commission Rule 10b–5, 17 CFR §240.10b–5 (2013). According to EPJ Fund, between June 3, 1999, and December 7, 2001, Halliburton made a series of misrepresentations regarding its potential liability in asbestos litigation, its expected revenue from certain construction contracts, and the anticipated benefits of its merger with another company—all in an attempt to inflate the price of its stock. Halliburton subsequently made a number of corrective disclosures, which, EPJ Fund contends, caused the company’s stock price to drop and investors to lose money. EPJ Fund moved to certify a class comprising all investors who purchased Halliburton common stock during the class period. The District Court found that the proposed class satisfied all the threshold requirements of Federal Rule of Civil Procedure 23(a): It was sufficiently numerous, there were common questions of law or fact, the representative parties’ claims were typical of the class claims, and the representatives could fairly and adequately protect the interests of the class. App. to Pet. for Cert. 54a. And except for one difficulty, the court would have also concluded that the class satisfied the requirement of Rule 23(b)(3) that “the questions of law or fact common to class members predominate over any questions affecting only individual members.” See id., at 55a, 98a. The difficulty was that Circuit precedent required securities fraud plaintiffs to prove “loss causation”—a causal connection between the defendants’ alleged misrepresentations and the plaintiffs’ economic losses—in order to invoke Basic’s presumption of reliance and obtain class certification. App. to Pet. for Cert. 55a, and n. 2. Because EPJ Fund had not demonstrated such a connection for any of Halliburton’s alleged misrepresentations, the District Court refused to certify the proposed class. Id., at 55a, 98a. The United States Court of Appeals for the Fifth Circuit affirmed the denial of class certification on the same ground. Archdiocese of Milwaukee Supporting Fund, Inc. v. Halliburton Co., 597 F. 3d 330 (2010). We granted certiorari and vacated the judgment, finding nothing in “Basic or its logic” to justify the Fifth Circuit’s requirement that securities fraud plaintiffs prove loss causation at the class certification stage in order to invoke Basic’s presumption of reliance. Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. ___, ___ (2011) (Halliburton I ) (slip op., at 6). “Loss causation,” we explained, “addresses a matter different from whether an investor relied on a misrepresentation, presumptively or otherwise, when buying or selling a stock.” Ibid. We remanded the case for the lower courts to consider “any further arguments against class certification” that Halliburton had preserved. Id., at ___ (slip op., at 9). On remand, Halliburton argued that class certification was inappropriate because the evidence it had earlier introduced to disprove loss causation also showed that none of its alleged misrepresentations had actually af-fected its stock price. By demonstrating the absence of any “price impact,” Halliburton contended, it had rebutted Basic’s presumption that the members of the proposed class had relied on its alleged misrepresentations simply by buying or selling its stock at the market price. And without the benefit of the Basic presumption, investors would have to prove reliance on an individual basis, meaning that individual issues would predominate over common ones. The District Court declined to consider Halliburton’s argument, holding that the Basic presumption applied and certifying the class under Rule 23(b)(3). App. to Pet. for Cert. 30a. The Fifth Circuit affirmed. 718 F. 3d 423 (2013). The court found that Halliburton had preserved its price impact argument, but to no avail. Id., at 435–436. While acknowledging that “Halliburton’s price impact evidence could be used at the trial on the merits to refute the presumption of reliance,” id., at 433, the court held that Halliburton could not use such evidence for that purpose at the class certification stage, id., at 435. “[P]rice impact evidence,” the court explained, “does not bear on the question of common question predominance [under Rule 23(b)(3)], and is thus appropriately considered only on the merits after the class has been certified.” Ibid. We once again granted certiorari, 571 U. S. ___ (2013), this time to resolve a conflict among the Circuits over whether securities fraud defendants may attempt to rebut the Basic presumption at the class certification stage with evidence of a lack of price impact. We also accepted Halliburton’s invitation to reconsider the presumption of reliance for securities fraud claims that we adopted in Basic. II Halliburton urges us to overrule Basic’s presumption of reliance and to instead require every securities fraud plaintiff to prove that he actually relied on the defendant’s misrepresentation in deciding to buy or sell a company’s stock. Before overturning a long-settled precedent, however, we require “special justification,” not just an argument that the precedent was wrongly decided. Dickerson v. United States, 530 U. S. 428, 443 (2000) (internal quotation marks omitted). Halliburton has failed to make that showing. A Section 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission’s Rule 10b–5 prohibit making any material misstatement or omission in connection with the purchase or sale of any security. Although section 10(b) does not create an express private cause of action, we have long recognized an implied private cause of action to enforce the provision and its implementing regulation. See Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 730 (1975) . To recover damages for violations of section 10(b) and Rule 10b–5, a plaintiff must prove “ ‘(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.’ ” Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U. S. ___, ___ (2013) (slip op., at 3–4) (quoting Matrixx Initiatives, Inc. v. Siracusano, 563 U. S. ___, ___ (2011) (slip op., at 9)). The reliance element “ ‘ensures that there is a proper connection between a defendant’s misrepresentation and a plaintiff’s injury.’ ” 568 U. S., at ___ (slip op., at 4) (quoting Halliburton I, 563 U. S., at ___ (slip op., at 4)). “The traditional (and most direct) way a plaintiff can demonstrate reliance is by showing that he was aware of a company’s statement and engaged in a relevant transaction—e.g., purchasing common stock—based on that specific misrepresentation.” Id., at ___ (slip op., at 4). In Basic, however, we recognized that requiring such direct proof of reliance “would place an unnecessarily unrealistic evidentiary burden on the Rule 10b–5 plaintiff who has traded on an impersonal market.” 485 U. S., at 245. That is because, even assuming an investor could prove that he was aware of the misrepresentation, he would still have to “show a speculative state of facts, i.e., how he would have acted . . . if the misrepresentation had not been made.” Ibid. We also noted that “[r]equiring proof of individualized reliance” from every securities fraud plaintiff “effectively would . . . prevent[ ] [plaintiffs] from proceeding with a class action” in Rule 10b–5 suits. Id., at 242. If every plaintiff had to prove direct reliance on the defendant’s misrepresentation, “individual issues then would . . . overwhelm[ ] the common ones,” making certification under Rule 23(b)(3) inappropriate. Ibid. To address these concerns, Basic held that securities fraud plaintiffs can in certain circumstances satisfy the reliance element of a Rule 10b–5 action by invoking a rebuttable presumption of reliance, rather than proving direct reliance on a misrepresentation. The Court based that presumption on what is known as the “fraud-on-the-market” theory, which holds that “the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations.” Id., at 246. The Court also noted that, rather than scrutinize every piece of public information about a company for himself, the typical “investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price”—the belief that it reflects all public, material information. Id., at 247. As a result, whenever the investor buys or sells stock at the market price, his “reliance on any public material misrepresentations . . . may be presumed for purposes of a Rule 10b–5 action.” Ibid. Based on this theory, a plaintiff must make the following showings to demonstrate that the presumption of reliance applies in a given case: (1) that the alleged misrepresentations were publicly known, (2) that they were material, (3) that the stock traded in an efficient market, and (4) that the plaintiff traded the stock between the time the misrepresentations were made and when the truth was revealed. See id., at 248, n. 27; Halliburton I, supra, at ___ (slip op., at 5–6). At the same time, Basic emphasized that the presumption of reliance was rebuttable rather than conclusive. Specifically, “[a]ny showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance.” 485 U. S., at 248. So for example, if a defendant could show that the alleged misrepresentation did not, for whatever reason, actually affect the market price, or that a plaintiff would have bought or sold the stock even had he been aware that the stock’s price was tainted by fraud, then the presumption of reliance would not apply. Id., at 248–249. In either of those cases, a plaintiff would have to prove that he directly relied on the defendant’s misrepresentation in buying or selling the stock. B Halliburton contends that securities fraud plaintiffs should always have to prove direct reliance and that the Basic Court erred in allowing them to invoke a presumption of reliance instead. According to Halliburton, the Basic presumption contravenes congressional intent and has been undermined by subsequent developments in economic theory. Neither argument, however, so discredits Basic as to constitute “special justification” for overruling the decision. 1 Halliburton first argues that the Basic presumption is inconsistent with Congress’s intent in passing the 1934 Exchange Act. Because “[t]he Section 10(b) action is a ‘judicial construct that Congress did not enact,’ ” this Court, Halliburton insists, “must identify—and borrow from—the express provision that is ‘most analogous to the private 10b–5 right of action.’ ” Brief for Petitioners 12 (quoting Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148, 164 (2008) ; Musick, Peeler& Garrett v. Employers Ins. of Wausau, 508 U. S. 286, 294 (1993) ). According to Halliburton, the closest analogueto section 10(b) is section 18(a) of the Act, which cre-ates an express private cause of action allowing inves-tors to recover damages based on misrepresentations made in certain regulatory filings. 15 U. S. C. §78r(a). That provision requires an investor to prove that he bought or sold stock “in reliance upon” the defendant’s misrepresentation. Ibid. In ignoring this direct reliance requirement, the argument goes, the Basic Court relieved Rule 10b–5 plaintiffs of a burden that Congress would have imposed had it created the cause of action. EPJ Fund contests both premises of Halliburton’s argument, arguing that Congress has affirmed Basic’s construction of section 10(b) and that, in any event, the closest analogue to section 10(b) is not section 18(a) but section 9, 15 U. S. C. §78i—a provision that does not require actual reliance. We need not settle this dispute. In Basic, the dissenting Justices made the same argument based on section 18(a) that Halliburton presses here. See 485 U. S., at 257–258 (White, J., concurring in part and dissenting in part). The Basic majority did not find that argument persuasive then, and Halliburton has given us no new reason to endorse it now. 2 Halliburton’s primary argument for overruling Basic is that the decision rested on two premises that can no longer withstand scrutiny. The first premise concerns what is known as the “efficient capital markets hypothesis.” Basic stated that “the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations.” Id., at 246. From that statement, Halliburton concludes that the Basic Court espoused “a robust view of market efficiency” that is no longer tenable, for “ ‘overwhelming empirical evidence’ now ‘suggests that capital markets are not fundamentally efficient.’ ” Brief for Petitioners 14–16 (quoting Lev & de Villiers, Stock Price Crashes and 10b–5 Damages: A Legal, Economic, and Policy Analysis, 47 Stan. L. Rev 7, 20 (1994)). To support this contention, Halliburton cites studies purporting to show that “public information is often not incorporated immediately (much less rationally) into market prices.” Brief for Petitioners 17; see id., at 16–20. See also Brief for Law Professors as Amici Curiae 15–18. Halliburton does not, of course, maintain that capital markets are always inefficient. Rather, in its view, Basic’s fundamental error was to ignore the fact that “ ‘efficiency is not a binary, yes or no question.’ ” Brief for Petitioners 20 (quoting Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 167)). The markets for some securities are more efficient than the markets for others, and even a single market can process different kinds of information more or less efficiently, depending on how widely the information is disseminated and how easily it is understood. Brief for Petitioners at 20–21. Yet Basic, Halliburton asserts, glossed over these nuances, assuming a false dichotomy that renders the presumption of reliance both underinclusive and overinclusive: A misrepresentation can distort a stock’s market price even in a generally inefficient market, and a misrepresentation can leave a stock’s market price unaffected even in a generally efficient one. Brief for Petitioners at 21. Halliburton’s criticisms fail to take Basic on its own terms. Halliburton focuses on the debate among economists about the degree to which the market price of a company’s stock reflects public information about the company—and thus the degree to which an investor can earn an abnormal, above-market return by trading on such information. See Brief for Financial Economists as Amici Curiae 4–10 (describing the debate). That debate is not new. Indeed, the Basic Court acknowledged it and declined to enter the fray, declaring that “[w]e need not determine by adjudication what economists and social scientists have debated through the use of sophisticated statistical analysis and the application of economic the-ory.” 485 U. S., at 246–247, n. 24. To recognize the presumption of reliance, the Court explained, was not “conclusively to adopt any particular theory of how quickly and completely publicly available information is reflected in market price.” Id., at 248, n. 28. The Court instead based the presumption on the fairly modest premise that “market professionals generally consider most publicly announced material statements about companies, thereby affecting stock market prices.” Id., at 247, n. 24. Basic’s presumption of reliance thus does not rest on a “binary” view of market efficiency. Indeed, in making the presumption rebuttable, Basic recognized that market efficiency is a matter of degree and accordingly made it a matter of proof. The academic debates discussed by Halliburton have not refuted the modest premise underlying the presumption of reliance. Even the foremost critics of the efficient-capital-markets hypothesis acknowledge that public information generally affects stock prices. See, e.g., Shiller, We’ll Share the Honors, and Agree to Disagree, N. Y. Times, Oct. 27, 2013, p. BU6 (“Of course, prices reflect available information”). Halliburton also conceded as much in its reply brief and at oral argument. See Reply Brief 13 (“market prices generally respond to new, material information”); Tr. of Oral Arg. 7. Debates about the precise degree to which stock prices accurately reflect public information are thus largely beside the point. “That the . . . price [of a stock] may be inaccurate does not detract from the fact that false statements affect it, and cause loss,” which is “all that Basic requires.” Schleicher v. Wendt, 618 F. 3d 679, 685 (CA7 2010) (Easterbrook, C. J.). Even though the efficient capital markets hypothesis may have “garnered substantial criticism since Basic,” post, at 6 (Thomas, J., concurring in judgment), Halliburton has not identified the kind of fundamental shift in economic the-ory that could justify overruling a precedent on the ground that it misunderstood, or has since been overtaken by, economic realities. Contrast State Oil Co. v. Khan, 522 U. S. 3 (1997) , unanimously overruling Albrecht v. Herald Co., 390 U. S. 145 (1968) . Halliburton also contests a second premise underlying the Basic presumption: the notion that investors “invest ‘in reliance on the integrity of [the market] price.’ ” Reply Brief 14 (quoting 485 U. S., at 247; alteration in original). Halliburton identifies a number of classes of investors for whom “price integrity” is supposedly “marginal or irrelevant.” Reply Brief 14. The primary example is the value investor, who believes that certain stocks are undervalued or overvalued and attempts to “beat the market” by buying the undervalued stocks and selling the overvalued ones. Brief for Petitioners 15–16 (internal quotation marks omitted). See also Brief for Vivendi S. A. as Amicus Curiae 3–10 (describing the investment strategies of day trad-ers, volatility arbitragers, and value investors). If many investors “are indifferent to prices,” Halliburton contends, then courts should not presume that investors rely on the integrity of those prices and any misrepresentations incorporated into them. Reply Brief 14. But Basic never denied the existence of such investors. As we recently explained, Basic concluded only that “it is reasonable to presume that most investors—knowing that they have little hope of outperforming the market in the long run based solely on their analysis of publicly available information—will rely on the security’s market price as an unbiased assessment of the security’s value in light of all public information.” Amgen, 568 U. S., at ___ (slip op., at 5) (emphasis added). In any event, there is no reason to suppose that even Halliburton’s main counterexample—the value investor—is as indifferent to the integrity of market prices as Halliburton suggests. Such an investor implicitly relies on the fact that a stock’s market price will eventually reflect material information—how else could the market correction on which his profit depends occur? To be sure, the value investor “does not believe that the market price accurately reflects public information at the time he transacts.” Post, at 11. But to indirectly rely on a misstatement in the sense relevant for the Basic presumption, he need only trade stock based on the belief that the market price will incorporate public information within a reasonable period. The value investor also presumably tries to estimate how undervalued or overvalued a particular stock is, and such estimates can be skewed by a market price tainted by fraud. C The principle of stare decisis has “ ‘special force’ ” “in respect to statutory interpretation” because “ ‘Congress remains free to alter what we have done.’ ” John R. Sand & Gravel Co. v. United States, 552 U. S. 130, 139 (2008) (quoting Patterson v. McLean Credit Union, 491 U. S. 164 –173 (1989)). So too with Basic’s presumption of reliance. Although the presumption is a judicially created doctrine designed to implement a judicially created cause of action, we have described the presumption as “a substantive doctrine of federal securities-fraud law.” Amgen, supra, at ___ (slip op., at 5). That is because it provides a way of satisfying the reliance element of the Rule 10b–5 cause of action. See, e.g., Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336 –342 (2005). As with any other element of that cause of action, Congress may overturnor modify any aspect of our interpretations of the reli-ance requirement, including the Basic presumption it-self. Given that possibility, we see no reason to exempt the Basic presumption from ordinary principles of stare decisis. To buttress its case for overruling Basic, Halliburton contends that, in addition to being wrongly decided, the decision is inconsistent with our more recent decisions construing the Rule 10b–5 cause of action. As Halliburton notes, we have held that “we must give ‘narrow dimensions . . . to a right of action Congress did not authorize when it first enacted the statute and did not expand when it revisited the law.’ ” Janus Capital Group, Inc. v. First Derivative Traders, 564 U. S. ___, ___ (2011) (slip op., at 6) (quoting Stoneridge, 552 U. S., at 167); see, e.g., Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164 (1994) (refusing to recognize aiding-and-abetting liability under the Rule 10b–5 cause of action); Stoneridge, supra (refusing to extend Rule 10b–5 liability to certain secondary actors who did not themselves make material misstatements). Yet the Basic presumption, Halliburton asserts, does just the opposite, expanding the Rule 10b–5 cause of action. Brief for Petitioners 27–29. Not so. In Central Bank and Stoneridge, we declined to extend Rule 10b–5 liability to entirely new categories of defendants who themselves had not made any material, public misrepresentation. Such an extension, we explained, would have eviscerated the requirement that a plaintiff prove that he relied on a misrepresentation made by the defendant. See Central Bank, supra, at 180; Stone-ridge, supra, at 157, 159. The Basic presumption doesnot eliminate that requirement but rather provides an alternative means of satisfying it. While the presumption makes it easier for plaintiffs to prove reliance, it does not alter the elements of the Rule 10b–5 cause of action and thus maintains the action’s original legal scope. Halliburton also argues that the Basic presumption cannot be reconciled with our recent decisions governing class action certification under Federal Rule of Civil Procedure 23. Those decisions have made clear that plaintiffs wishing to proceed through a class action must actually prove—not simply plead—that their proposed class satisfies each requirement of Rule 23, including (if applicable) the predominance requirement of Rule 23(b)(3). See Wal-Mart Stores, Inc. v. Dukes, 564 U. S. ___, ___ (2011) (slip op., at 10); Comcast Corp. v. Behrend, 569 U. S. ___, ___ (2013) (slip op., at 5–6). According to Halliburton, Basic relieves Rule 10b–5 plaintiffs of that burden, allowing courts to presume that common issues of reliance predominate over individual ones. That is not the effect of the Basic presumption. In securities class action cases, the crucial requirement for class certification will usually be the predominance requirement of Rule 23(b)(3). The Basic presumption does not relieve plaintiffs of the burden of proving—before class certification—that this requirement is met. Basic instead establishes that a plaintiff satisfies that burden by proving the prerequisites for invoking the presumption—namely, publicity, materiality, market efficiency, and market timing. The burden of proving those prerequisites still rests with plaintiffs and (with the exception of materiality) must be satisfied before class certification. Basic does not, in other words, allow plaintiffs simply to plead that common questions of reliance predominate over individual ones, but rather sets forth what they must prove to demonstrate such predominance. Basic does afford defendants an opportunity to rebut the presumption of reliance with respect to an individual plaintiff by showing that he did not rely on the integrity of the market price in trading stock. While this has the effect of “leav[ing] individualized questions of reliance in the case,” post, at 12, there is no reason to think that these questions will overwhelm common ones and render class certification inappropriate under Rule 23(b)(3). That the defendant might attempt to pick off the occasional class member here or there through individualized rebuttal does not cause individual questions to predominate. Finally, Halliburton and its amici contend that, by facilitating securities class actions, the Basic presumption produces a number of serious and harmful consequences. Such class actions, they say, allow plaintiffs to extort large settlements from defendants for meritless claims; punish innocent shareholders, who end up having to pay settlements and judgments; impose excessive costs on businesses; and consume a disproportionately large share of judicial resources. Brief for Petitioners 39–45. These concerns are more appropriately addressed to Congress, which has in fact responded, to some extent, to many of the issues raised by Halliburton and its amici. Congress has, for example, enacted the Private Securities Litigation Reform Act of 1995 (PSLRA), 109Stat. 737, which sought to combat perceived abuses in securities litigation with heightened pleading requirements, limits on damages and attorney’s fees, a “safe harbor” for certain kinds of statements, restrictions on the selection of lead plaintiffs in securities class actions, sanctions for frivolous litigation, and stays of discovery pending motions to dismiss. See Amgen, 568 U. S., at ___ (slip op., at 19–20). And to prevent plaintiffs from circumventing these restrictions by bringing securities class actions under state law in state court, Congress also enacted the Securities Litigation Uniform Standards Act of 1998, 112Stat. 3227, which precludes many state law class actions alleging securities fraud. See Amgen, supra, at ___ (slip op., at 20). Such legislation demonstrates Congress’s willingness to consider policy concerns of the sort that Halliburton says should lead us to overrule Basic. III Halliburton proposes two alternatives to overruling Basic that would alleviate what it regards as the decision’s most serious flaws. The first alternative would require plaintiffs to prove that a defendant’s misrepresentation actually affected the stock price—so-called “price impact”—in order to invoke the Basic presumption. It should not be enough, Halliburton contends, for plaintiffs to demonstrate the general efficiency of the market in which the stock traded. Halliburton’s second proposed alternative would allow defendants to rebut the presumption of reliance with evidence of a lack of price impact, not only at the merits stage—which all agree defendants may already do—but also before class certification. A As noted, to invoke the Basic presumption, a plaintiff must prove that: (1) the alleged misrepresentations were publicly known, (2) they were material, (3) the stock traded in an efficient market, and (4) the plaintiff traded the stock between when the misrepresentations were made and when the truth was revealed. See Basic, 485 U. S., at 248, n. 27; Amgen, supra, at ___ (slip op., at 15). Each of these requirements follows from the fraud-on-the-market theory underlying the presumption. If the misrepresentation was not publicly known, then it could not have distorted the stock’s market price. So too if the misrepresentation was immaterial—that is, if it would not have “ ‘been viewed by the reasonable investor as having significantly altered the “total mix” of information made available,’ ” Basic, supra, at 231–232 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438, 449 (1976) )—or if the market in which the stock traded was inefficient. And if the plaintiff did not buy or sell the stock after the misrepresentation was made but before the truth was revealed, then he could not be said to have acted in reliance on a fraud-tainted price. The first three prerequisites are directed at price impact—“whether the alleged misrepresentations affected the market price in the first place.” Halliburton I, 563 U. S., at ___ (slip op., at 8). In the absence of price impact, Basic’s fraud-on-the-market theory and presumption of reliance collapse. The “fundamental premise” underlying the presumption is “that an investor presumptively relies on a misrepresentation so long as it was reflected in the market price at the time of his transaction.” 563 U. S., at ___ (slip op., at 7). If it was not, then there is “no grounding for any contention that [the] investor[ ] indirectly relied on th[at] misrepresentation[ ] through [his] reliance on the integrity of the market price.” Amgen, supra, at ___ (slip op., at 17). Halliburton argues that since the Basic presumption hinges on price impact, plaintiffs should be required to prove it directly in order to invoke the presumption. Proving the presumption’s prerequisites, which are at best an imperfect proxy for price impact, should not suffice. Far from a modest refinement of the Basic presumption, this proposal would radically alter the required showing for the reliance element of the Rule 10b–5 cause of action. What is called the Basic presumption actually incorporates two constituent presumptions: First, if a plaintiff shows that the defendant’s misrepresentation was public and material and that the stock traded in a generally efficient market, he is entitled to a presumption that the misrepresentation affected the stock price. Second, if the plaintiff also shows that he purchased the stock at the market price during the relevant period, he is entitled to a further presumption that he purchased the stock in reliance on the defendant’s misrepresentation. By requiring plaintiffs to prove price impact directly, Halliburton’s proposal would take away the first constituent presumption. Halliburton’s argument for doing so is the same as its primary argument for overruling the Basic presumption altogether: Because market efficiency is not a yes-or-no proposition, a public, material misrepresentation might not affect a stock’s price even in a generally efficient market. But as explained, Basic never suggested otherwise; that is why it affords defendants an opportunity to rebut the presumption by showing, among other things, that the particular misrepresentation at issue did not affect the stock’s market price. For the same reasons we declined to completely jettison the Basic presumption, we decline to effectively jettison half of it by revising the prerequisites for invoking it. B Even if plaintiffs need not directly prove price impact to invoke the Basic presumption, Halliburton contends that defendants should at least be allowed to defeat the presumption at the class certification stage through evidence that the misrepresentation did not in fact affect the stock price. We agree. 1 There is no dispute that defendants may introduce such evidence at the merits stage to rebut the Basic presumption. Basic itself “made clear that the presumption was just that, and could be rebutted by appropriate evidence,” including evidence that the asserted misrepresentation (or its correction) did not affect the market price of the defendant’s stock. Halliburton I, supra, at ___ (slip op., at 5); see Basic, supra, at 248. Nor is there any dispute that defendants may introduce price impact evidence at the class certification stage, so long as it is for the purpose of countering a plaintiff ’s showing of market efficiency, rather than directly rebutting the presumption. As EPJ Fund acknowledges, “[o]f course . . . defendants can introduce evidence at class certification of lack of price impact as some evidence that the market is not efficient.” Brief for Respondent 53. See also Brief for United States as Amicus Curiae 26. After all, plaintiffs themselves can and do introduce evidence of the existence of price impact in connection with “event studies”—regression analyses that seek to show that the market price of the defendant’s stock tends to respond to pertinent publicly reported events. See Brief for Law Professors as Amici Curiae 25–28. In this case, for example, EPJ Fund submitted an event study of various episodes that might have been expected to affect the price of Halliburton’s stock, in order to demonstrate that the market for that stock takes account of material, public information about the company. See App. 217–230 (describing the results of the study). The episodes examined by EPJ Fund’s event study included one of the alleged misrepresentations that form the basis of the Fund’s suit. See id., at 230, 343–344. See also In re Xcelera.com Securities Litigation, 430 F. 3d 503, 513 (CA1 2005) (event study included effect of misrepresentation challenged in the case). Defendants—like plaintiffs—may accordingly submit price impact evidence prior to class certification. What defendants may not do, EPJ Fund insists and the Court of Appeals held, is rely on that same evidence prior to class certification for the particular purpose of rebutting the presumption altogether. This restriction makes no sense, and can readily lead to bizarre results. Suppose a defendant at the certification stage submits an event study looking at the impact on the price of its stock from six discrete events, in an effort to refute the plaintiffs’ claim of general market efficiency. All agree the defendant may do this. Suppose one of the six events is the specific misrepresentation asserted by the plaintiffs. All agree that this too is perfectly acceptable. Now suppose the district court determines that, despite the defendant’s study, the plaintiff has carried its burden to prove market efficiency, but that the evidence shows no price impact with respect to the specific misrepresentation challenged in the suit. The evidence at the certification stage thus shows an efficient market, on which the alleged misrepresentation had no price impact. And yet under EPJ Fund’s view, the plaintiffs’ action should be certified and proceed as a class action (with all that entails), even though the fraud-on-the-market theory does not apply and common reliance thus cannot be presumed. Such a result is inconsistent with Basic’s own logic. Under Basic’s fraud-on-the-market theory, market efficiency and the other prerequisites for invoking the presumption constitute an indirect way of showing price impact. As explained, it is appropriate to allow plaintiffs to rely on this indirect proxy for price impact, rather than requiring them to prove price impact directly, given Basic’s rationales for recognizing a presumption of reliance in the first place. See supra, at 6–7, 16–17. But an indirect proxy should not preclude direct evidence when such evidence is available. As we explained in Basic, “[a]ny showing that severs the link between the alleged misrepresentation and . . . the price received (or paid) by the plaintiff . . . will be sufficient to rebut the presumption of reliance” because “the basis for finding that the fraud had been transmitted through market price would be gone.” 485 U. S., at 248. And without the presumption of reliance, a Rule 10b–5 suit cannot proceed as a class action: Each plaintiff would have to prove reliance individually, so common issues would not “predominate” over individual ones, as required by Rule 23(b)(3). Id., at 242. Price impact is thus an essential precondition for any Rule 10b–5 class action. While Basic allows plaintiffs to establish that precondition indirectly, it does not require courts to ignore a defendant’s direct, more salient evidence showing that the alleged misrepresentation did not actually affect the stock’s market price and, consequently, thatthe Basic presumption does not apply. 2 The Court of Appeals relied on our decision in Amgen in holding that Halliburton could not introduce evidence of lack of price impact at the class certification stage. The question in Amgen was whether plaintiffs could be required to prove (or defendants be permitted to disprove) materiality before class certification. Even though materiality is a prerequisite for invoking the Basic presumption, we held that it should be left to the merits stage, because it does not bear on the predominance requirement of Rule 23(b)(3). We reasoned that materiality is an objective issue susceptible to common, classwide proof. 568 U. S., at ___ (slip op., at 11). We also noted that a failure to prove materiality would necessarily defeat every plaintiff’s claim on the merits; it would not simply preclude invocation of the presumption and thereby cause individual questions of reliance to predominate over common ones. Ibid. See also id., at ___ (slip op., at 17–18). In this latter respect, we explained, materiality differs from the publicity and market efficiency prerequisites, neither of which is necessary to prove a Rule 10b–5 claim on the merits. Id., at ___–___ (slip op., at 16–18). EPJ Fund argues that much of the foregoing could be said of price impact as well. Fair enough. But price impact differs from materiality in a crucial respect. Given that the other Basic prerequisites must still be proved at the class certification stage, the common issue of materiality can be left to the merits stage without risking the certification of classes in which individual issues will end up overwhelming common ones. And because materiality is a discrete issue that can be resolved in isolation from the other prerequisites, it can be wholly confined to the merits stage. Price impact is different. The fact that a misrepresentation “was reflected in the market price at the time of [the] transaction”—that it had price impact—is “Basic’s fundamental premise.” Halliburton I, 563 U. S., at ___ (slip op., at 7). It thus has everything to do with the issue of predominance at the class certification stage. That is why, if reliance is to be shown through the Basic presumption, the publicity and market efficiency prerequisites must be proved before class certification. Without proof of those prerequisites, the fraud-on-the-market theory underlying the presumption completely collapses, rendering class certification inappropriate. But as explained, publicity and market efficiency are nothing more than prerequisites for an indirect showing of price impact. There is no dispute that at least such indirect proof of price impact “is needed to ensure that the questions of law or fact common to the class will ‘predominate.’ ” Amgen, 568 U. S., at ___ (slip op., at 10) (emphasis deleted); see id., at ___ (slip op., at 16–17). That is so even though such proof is also highly relevant at the merits stage. Our choice in this case, then, is not between allowing price impact evidence at the class certification stage or relegating it to the merits. Evidence of price impact will be before the court at the certification stage in any event. The choice, rather, is between limiting the price impact inquiry before class certification to indirect evidence, or allowing consideration of direct evidence as well. As explained, we see no reason to artificially limit the inquiry at the certification stage to indirect evidence of price impact. Defendants may seek to defeat the Basic presumption at that stage through direct as well as indirect price impact evidence. * * * More than 25 years ago, we held that plaintiffs could satisfy the reliance element of the Rule 10b–5 cause of action by invoking a presumption that a public, material misrepresentation will distort the price of stock traded in an efficient market, and that anyone who purchases the stock at the market price may be considered to have done so in reliance on the misrepresentation. We adhere to that decision and decline to modify the prerequisites for invoking the presumption of reliance. But to maintain the consistency of the presumption with the class certification requirements of Federal Rule of Civil Procedure 23, defendants must be afforded an opportunity before class certification to defeat the presumption through evidence that an alleged misrepresentation did not actually affect the market price of the stock. Because the courts below denied Halliburton that opportunity, we vacate the judgment of the Court of Appeals for the Fifth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus HALLIBURTON CO. et al. v. ERICA P. JOHN FUND, INC., fka ARCHDIOCESE OF MILWAUKEE SUPPORTING FUND, INC. certiorari to the united states court of appeals for the fifth circuit No. 13–317. Argued March 5, 2014—Decided June 23, 2014 Investors can recover damages in a private securities fraud action only if they prove that they relied on the defendant’s misrepresentation in deciding to buy or sell a company’s stock. In Basic Inc. v. Levinson, 485 U.S. 224, this Court held that investors could satisfy this reliance requirement by invoking a presumption that the price of stock traded in an efficient market reflects all public, material information—including material misrepresentations. The Court also held, however, that a defendant could rebut this presumption by showing that the alleged misrepresentation did not actually affect the stock price—that is, that it had no “price impact.” Respondent Erica P. John Fund, Inc. (EPJ Fund), filed a putative class action against Halliburton and one of its executives (collectively Halliburton), alleging that they made misrepresentations designed to inflate Halliburton’s stock price, in violation of section 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b–5. The District Court initially denied EPJ Fund’s class certification motion, and the Fifth Circuit affirmed. But this Court vacated that judgment, concluding that securities fraud plaintiffs need not prove loss causation—a causal connection between the defendants’ alleged misrepresentations and the plaintiffs’ economic losses—at the class certification stage in order to invoke Basic’s presumption of reliance. On remand, Halliburton argued that class certification was nonetheless inappropriate because the evidence it had earlier introduced to disprove loss causation also showed that its alleged misrepresentations had not affected its stock price. By demonstrating the absence of any “price impact,” Halliburton contended, it had rebutted the Basic presumption. And without the benefit of that presumption, investors would have to prove reliance on an individual basis, meaning that individual issues would predominate over common ones and class certification would be inappropriate under Federal Rule of Civil Procedure 23(b)(3). The District Court rejected Halliburton’s argument and certified the class. The Fifth Circuit affirmed, concluding that Halliburton could use its price impact evidence to rebut the Basic presumption only at trial, not at the class certification stage. Held: 1. Halliburton has not shown a “special justification,” Dickerson v. United States, 530 U.S. 428, 443, for overruling Basic’s presumption of reliance. . (a) To recover damages under section 10(b) and Rule 10b–5, a plaintiff must prove, as relevant here, “ ‘reliance upon the misrepresentation or omission.’ ” Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U. S. ___, ___. The Court recognized in Basic, however, that requiring direct proof of reliance from every individual plaintiff “would place an unnecessarily unrealistic evidentiary burden on the . . . plaintiff who has traded on an impersonal market,” 485 U. S., at 245, and “effectively would” prevent plaintiffs “from proceeding with a class action” in Rule 10b–5 suits, id., at 242. To address these concerns, the Court held that plaintiffs could satisfy the reliance element of a Rule 10b–5 action by invoking a rebuttable presumption of reliance. The Court based that presumption on what is known as the “fraud-on-the-market” theory, which holds that “the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations.” Id., at 246. The Court also noted that the typical “investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price.” Id., at 247. As a result, whenever an investor buys or sells stock at the market price, his “reliance on any public material misrepresentations . . . may be presumed for purposes of a Rule 10b–5 action.” Id. at 247. Basic also emphasized that the presumption of reliance was rebuttable rather than conclusive. . (b) None of Halliburton’s arguments for overruling Basic so discredit the decision as to constitute a “special justification.” . (1) Halliburton first argues that the Basic presumption is inconsistent with Congress’s intent in passing the 1934 Exchange Act—the same argument made by the dissenting Justices in Basic. The Basic majority did not find that argument persuasive then, and Halliburton has given no new reason to endorse it now. . (2) Halliburton also contends that Basic rested on two premises that have been undermined by developments in economic theory. First, it argues that the Basic Court espoused “a robust view of market efficiency” that is no longer tenable in light of empirical evidence ostensibly showing that material, public information often is not quickly incorporated into stock prices. The Court in Basic acknowledged, however, the debate among economists about the efficiency of capital markets and refused to endorse “any particular theory of how quickly and completely publicly available information is reflected in market price.” 485 U. S., at 248, n. 28. The Court instead based the presumption of reliance on the fairly modest premise that “market professionals generally consider most publicly announced material statements about companies, thereby affecting stock market prices.” Id., at 247, n. 24. Moreover, in making the presumption rebuttable, Basic recognized that market efficiency is a matter of degree and accordingly made it a matter of proof. Halliburton has not identified the kind of fundamental shift in economic theory that could justify overruling a precedent on the ground that it misunderstood, or has since been overtaken by, economic realities. Halliburton also contests the premise that investors “invest ‘in reliance on the integrity of [the market] price,’ ” id., at 247, identifying a number of classes of investors for whom “price integrity” is supposedly “marginal or irrelevant.” But Basic never denied the existence of such investors, who in any event rely at least on the facts that market prices will incorporate public information within a reasonable period and that market prices, however inaccurate, are not distorted by fraud. . (c) The principle of stare decisis has “ ‘special force’ ” “in respect to statutory interpretation” because “ ‘Congress remains free to alter what [the Court has] done.’ ” John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139. So too with Basic’s presumption of reliance. The presumption is not inconsistent with this Court’s more recent decisions construing the Rule 10b–5 cause of action. In Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, and Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, the Court declined to effectively eliminate the reliance element by extending liability to entirely new categories of defendants who themselves had not made any material, public misrepresentation. The Basic presumption, by contrast, merely provides an alternative means of satisfying the reliance element. Nor is the Basic presumption inconsistent with the Court’s recent decisions governing class action certification, which require plaintiffs to prove—not simply plead—that their proposed class satisfies each requirement of Federal Rule of Civil Procedure 23, including, if applicable, the predominance requirement of Rule 23(b)(3). See, e.g., Wal-Mart Stores, Inc. v. Dukes, 564 U. S. ___, ___. The Basic presumption does not relieve plaintiffs of that burden but rather sets forth what plaintiffs must prove to demonstrate predominance. Finally, Halliburton emphasizes the possible harmful consequences of the securities class actions facilitated by the Basic presumption, but such concerns are more appropriately addressed to Congress, which has in fact responded, to some extent, to many of them. . 2. For the same reasons the Court declines to overrule Basic’s presumption of reliance, it also declines to modify the prerequisites for invoking the presumption by requiring plaintiffs to prove “price impact” directly at the class certification stage. The Basic presumption incorporates two constituent presumptions: First, if a plaintiff shows that the defendant’s misrepresentation was public and material and that the stock traded in a generally efficient market, he is entitled to a presumption that the misrepresentation affected the stock price. Second, if the plaintiff also shows that he purchased the stock at the market price during the relevant period, he is entitled to a further presumption that he purchased the stock in reliance on the defendant’s misrepresentation. Requiring plaintiffs to prove price impact directly would take away the first constituent presumption. Halliburton’s argument for doing so is the same as its argument for overruling the Basic presumption altogether, and it meets the same fate. . 3. The Court agrees with Halliburton, however, that defendants must be afforded an opportunity to rebut the presumption of reliance before class certification with evidence of a lack of price impact. Defendants may already introduce such evidence at the merits stage to rebut the Basic presumption, as well as at the class certification stage to counter a plaintiff’s showing of market efficiency. Forbidding defendants to rely on the same evidence prior to class certification for the particular purpose of rebutting the presumption altogether makes no sense, and can readily lead to results that are inconsistent with Basic’s own logic. Basic allows plaintiffs to establish price impact indirectly, by showing that a stock traded in an efficient market and that a defendant’s misrepresentations were public and material. But an indirect proxy should not preclude consideration of a defendant’s direct, more salient evidence showing that an alleged misrepresentation did not actually affect the stock’s price and, consequently, that the Basic presumption does not apply. Amgen does not require a different result. There, the Court held that materiality, though a prerequisite for invoking the Basic presumption, should be left to the merits stage because it does not bear on the predominance requirement of Rule 23(b)(3). In contrast, the fact that a misrepresentation has price impact is “Basic’s fundamental premise.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. ___, ___. It thus has everything to do with the issue of predominance at the class certification stage. That is why, if reliance is to be shown through the Basic presumption, the publicity and market efficiency prerequisites must be proved before class certification. Given that such indirect evidence of price impact will be before the court at the class certification stage in any event, there is no reason to artificially limit the inquiry at that stage by excluding direct evidence of price impact. . 718 F.3d 423, vacated and remanded. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Ginsburg, J., filed a concurring opinion, in which Breyer and Sotomayor, JJ., joined. Thomas, J., filed an opinion concurring in the judgment, in which Scalia and Alito, JJ., joined.

Respondent Erica P. John Fund, Inc. (EPJ Fund), is the lead plaintiff in a putative class action against respondent Halliburton Co. (Halliburton) alleging violations of § 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission (SEC) Rule 10b-5. The District Court found that the proposed class was sufficiently numerous, there were common questions of law or fact, the representative parties' claims were typical of the class claims, and the representatives could fairly and adequately protect the class. But it would have also had to conclude that the class satisfied the SEC Rule 23(b)(3) requirement, which precludes the SEC from requiring securities fraud plaintiffs to prove loss causation at the class certification stage in order to invoke Basic Inc. v. Levinson, 485 U. S. 224 (1988), which held that anyone who buys or sells the stock at the market price may be considered to have relied on the defendant's misrepresentation. And without the benefit of the Basic presumption, investors would have to prove reliance on an individual basis, meaning that individual issues would predominate over common ones. The Court of Appeals affirmed the denial of class certification on the same ground. However, the court vacated the judgment, finding nothing in Basic or its logic to justify the Fifth Circuit requirement. It remanded the case to the District Court for further proceedings. Held: 1. The Basic presumption of reliance is overruled, since it requires every securities fraud plaintiff to prove (1) that the alleged misrepresentations were publicly known, (2) they were material, (3) the stock traded in an efficient market, and (4) the plaintiff traded the stock between when the misrepresentation was made and when the truth was revealed. . (a) The presumption is rebuttable rather than conclusive, since a showing that severs the link between an alleged misrepresentation and either the price received or paid by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption. The presumption also provides an alternative means of satisfying it, since, in the absence of price impact, the fraud-on-the-market theory underlying the presumption collapses, rendering class certification inappropriate. Basic does not allow plaintiffs simply to plead that common question of reliance predominates over individual ones, but rather sets forth what they must prove to demonstrate such predominance. Moreover, the presumption does not rest on a presumption that a material misrepresentation does not actually affect the stock's market price. Rather, it rebutts the presumption by showing, inter alia, that the particular misrepresentation did not affect that stock at all. Pp. 468 U.S. 661. 2. Even if plaintiffs need not directly prove price impact to invoke the basic presumption, defendants must be afforded an opportunity before class certification to defeat the presumption through evidence that the misrepresentations did not in fact affect the market price of the stock. See, e.g., Amgen Institute v. Connecticut Retirement Plans and Trust Funds,,. Such evidence is to be relied on as a supplement to the established presumption that the stock price reflects all publicly available information, and, hence, has no price impact. Here, since the crucial requirement for class certification will usually be the predominance requirement of Rule 23, the crucial prerequisites are directed at price impact (i.e., publicity, materiality, market efficiency, and market timing), and since a defendant at the certification stage submits an event study looking at the impact on the price of its stock from six discrete events, in an effort to refute the plaintiffs' claim of general market efficiency. If it is not, then there is no grounding for any contention that the investor indirectly relied on th[at misrepresentation through his reliance on the integrity of a market price tainted by fraud. There is no reason to think that individualized questions of reliance in the case will overwhelm common ones, and hence class certification would be inappropriate under Federal Rule of Civil Procedure 23. Nor is there any merit to the argument that, since Basic allows plaintiffs to establish that precondition indirectly, it does not require courts to ignore a defendant's direct, more salient evidence showing that the allegedly misrepresentation did not actually effect the stock market price and, consequently, thatthe Basic presumption does not apply.. 3. Nor are the alternatives to overruling Basic that would alleviate what it regards as the decision's most serious flaws. Defendants may introduce price impact evidence at the merits stage, so long as it is for the purpose of countering a plaintiff showing that he relied on a misrepresentation made by the defendant, rather than directly rebutting the presumption, and they can demonstrate the general efficiency of the market in which the stock traded. Petitioners, however, may not do so prior to class certification, since they may be required to prove the same evidence prior to the

2013_11-681

https://www.oyez.org/cases/2013/11-681

. This case presents the question whether the First Amendment permits a State to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support. We hold that it does not, and we therefore reverse the judgment of the Court of Appeals. I A Millions of Americans, due to age, illness, or injury, are unable to live in their own homes without assistance and are unable to afford the expense of in-home care. In order to prevent these individuals from having to enter a nursing home or other facility, the federal Medicaid program funds state-run programs that provide in-home services to individuals whose conditions would otherwise require institutionalization. See 42 U. S. C. §1396n(c)(1). A State that adopts such a program receives federal funds to compensate persons who attend to the daily needs of individuals needing in-home care. Ibid.; see also 42 CFR §§440.180, 441.300–441.310 (2013). Almost every State has established such a program. See Dept. of Health and Human Services, Understanding Medicaid Home and Community Services: A Primer (2010). One of those States is Illinois, which has created the Illinois Department of Human Services Home Services Program, known colloquially as the state “Rehabilitation Program.” Ill. Comp. Stat., ch. 20, §2405/3(f ) (West 2012); 89 Ill. Admin. Code §676.10 (2007). “[D]esigned to prevent the unnecessary institutionalization of individuals who may instead be satisfactorily maintained at home at a lesser cost to the State,” §676.10(a), the Rehabilitation Program allows participants to hire a “personal assistant” who provides homecare services tailored to the individual’s needs. Many of these personal assistants are relatives of the person receiving care, and some of them provide care in their own homes. See App. 16–18. Illinois law establishes an employer-employee relationship between the person receiving the care and the person providing it. The law states explicitly that the person receiving home care—the “customer”—“shall be the employer of the [personal assistant].” 89 Ill. Admin. Code §676.30(b) (emphasis added). A “personal assistant” is defined as “an individual employed by the customer to provide . . . varied services that have been approved by the customer’s physician,” §676.30(p) (emphasis added), and the law makes clear that Illinois “shall not have control or input in the employment relationship between the customer and the personal assistants.” §676.10(c). Other provisions of the law emphasize the customer’s employer status. The customer “is responsible for controlling all aspects of the employment relationship between the customer and the [personal assistant (or PA)], including, without limitation, locating and hiring the PA, training the PA, directing, evaluating and otherwise supervising the work performed by the personal assistant, imposing . . . disciplinary action against the PA, and terminating the employment relationship between the customer and the PA.” §676.30(b).[1] In general, the customer “has complete discretion in which Personal Assistant he/she wishes to hire.” §684.20(b). A customer also controls the contents of the document, the Service Plan, that lists the services that the customer will receive. §684.10(a). No Service Plan may take effect without the approval of both the customer and the customer’s physician. See §684.10, 684.40, 684.50, 684.75. Service Plans are highly individualized. The Illinois State Labor Relations Board noted in 1985 that “[t]here is no typical employment arrangement here, public or otherwise; rather, there simply exists an arrangement whereby the state of Illinois pays individuals . . . to work under the direction and control of private third parties.” Illinois Dept. of Central Management Serv., No. S–RC–115, 2 PERI ¶2007, p. VIII–30, (1985), superseded, 2003 Ill. Laws p. 1929. While customers exercise predominant control over their employment relationship with personal assistants, the State, subsidized by the federal Medicaid program, pays the personal assistants’ salaries. The amount paid varies depending on the services provided, but as a general matter, it “corresponds to the amount the State would expect to pay for the nursing care component of institutionalization if the individual chose institutionalization.” 89 Ill. Admin. Code §679.50(a). Other than providing compensation, the State’s role is comparatively small. The State sets some basic threshold qualifications for employment. See §§686.10(h)(1)–(10).[2] (For example, a personal assistant must have a Social Security number, must possess basic communication skills, and must complete an employment agreement with the customer. §§686.10, 686.20, 686.40.) The State mandates an annual performance review by the customer, helps the customer conduct that review, and mediates disagreements between customers and their personal assistants. §686.30. The State suggests certain duties that personal assistants should assume, such as performing “household tasks,” “shopping,” providing “personal care,” performing “incidental health care tasks,” and “monitoring to ensure the health and safety of the cus-tomer.” §686.20. In addition, a state employee must “identify the appropriate level of service provider” “based on the customer’s approval of the initial Service Plan,” §684.20(a) (emphasis added), and must sign each customer’s Service Plan. §684.10. B Section 6 of the Illinois Public Labor Relations Act (PLRA) authorizes state employees to join labor unions and to bargain collectively on the terms and conditions of employment. Ill. Comp. Stat., ch. 5, §315/6(a). This law applies to “[e]mployees of the State and any political subdivision of the State,” subject to certain exceptions, and it provides for a union to be recognized if it is “designated by the [Public Labor Relations] Board as the representative of the majority of public employees in an appropriate unit . . . .” §§315/6(a), (c). The PLRA contains an agency-fee provision, i.e., a provision under which members of a bargaining unit who do not wish to join the union are nevertheless required to pay a fee to the union. See Workers v. Mobil Oil Corp., 426 U. S. 407, 409, n. 1 (1976) . Labeled a “fair share” provision, this section of the PLRA provides: “When a collective bargaining agreement is entered into with an exclusive representative, it may include in the agreement a provision requiring employees covered by the agreement who are not members of the organization to pay their proportionate share of the costs of the collective-bargaining process, contract administration and pursuing matters affecting wages, hours and conditions of employment.” §315/6(e). This payment is “deducted by the employer from the earnings of the nonmember employees and paid to the em-ployee organization.” Ibid. In the 1980’s, the Service Employees International Union (SEIU) petitioned the Illinois Labor Relations Board for permission to represent personal assistants employed by customers in the Rehabilitation Program, but the board rebuffed this effort. Illinois Dept. of Central Management Servs., supra, at VIII–30. The board concluded that “it is clear . . . that [Illinois] does not exercise the type of control over the petitioned-for employees necessary to be considered, in the collective bargaining context envisioned by the [PLRA], their ‘employer’ or, at least, their sole employer.” Ibid. In March 2003, however, Illinois’ newly elected Governor, Rod Blagojevich, circumvented this decision by issuing Executive Order 2003–08. See App. to Pet. for Cert. 45a–47a. The order noted the Illinois Labor Relations Board decision but nevertheless called for state recognition of a union as the personal assistants’ exclusive representative for the purpose of collective bargaining with the State. This was necessary, Gov. Blagojevich declared, so that the State could “receive feedback from the personal assistants in order to effectively and efficiently deliver home services.” Id., at 46a. Without such representation, the Governor proclaimed, personal assistants “cannot effectively voice their concerns about the organization of the Home Services program, their role in the program, or the terms and conditions of their employment under the Program.” Ibid. Several months later, the Illinois Legislature codified that executive order by amending the PLRA. Pub. Act no. 93–204, §5, 2003 Ill. Laws p. 1930. While acknowledging “the right of the persons receiving services . . . to hire and fire personal assistants or supervise them,” the Act declared personal assistants to be “public employees” of the State of Illinois—but “[s]olely for the purposes of coverage under the Illinois Public Labor Relations Act.” Ill. Comp. Stat., ch. 20, §2405/3(f ). The statute emphasized that personal assistants are not state employees for any other purpose, “including but not limited to, purposes of vicarious liability in tort and purposes of statutory retirement or health insurance benefits.” Ibid. Following a vote, SEIU Healthcare Illinois & Indiana (SEIU–HII) was designated as the personal assistants’ exclusive representative for purposes of collective bargaining. See App. 23. The union and the State subsequently entered into collective-bargaining agreements that require all personal assistants who are not union members to pay a “fair share” of the union dues. Id., at 24–25. These payments are deducted directly from the personal assistants’ Medicaid payments. Ibid. The record in this case shows that each year, personal assistants in Illinois pay SEIU–HII more than $3.6 million in fees. Id., at 25. C Three of the petitioners in the case now before us—Theresa Riffey, Susan Watts, and Stephanie Yencer-Price—are personal assistants under the Rehabilitation Program. They all provide in-home services to family members or other individuals suffering from disabilities.[3] Susan Watts, for example, serves as personal assistant for her daughter, who requires constant care due to quadriplegic cerebral palsy and other conditions. See App. 18. In 2010, these petitioners filed a putative class action on behalf of all Rehabilitation Program personal assistants in the United States District Court for the Northern District of Illinois. See 656 F. 3d 692, 696 (CA7 2011). Their complaint, which named the Governor and the union as defendants, sought an injunction against enforcement of the fair-share provision and a declaration that the Illinois PLRA violates the First Amendment insofar as it requires personal assistants to pay a fee to a union that they do not wish to support. Ibid. The District Court dismissed their claims with prejudice, and the Seventh Circuit affirmed in relevant part, concluding that the case was controlled by this Court’s decision in Abood v. Detroit Bd. of Ed. 431 U. S. 209 (1977) . 656 F. 3d, at 698. The Seventh Circuit held that Illinois and the customers who receive in-home care are “joint employers” of the personal assistants, and the court stated that it had “no difficulty concluding that the State employs personal assistants within the meaning of Abood.” Ibid. Petitioners sought certiorari. Their petition pointed out that other States were following Illinois’ lead by enacting laws or issuing executive orders that deem personal assistants to be state employees for the purpose of unionization and the assessment of fair-share fees. See App. to Pet. for Cert. 22a. Petitioners also noted that Illinois has enacted a law that deems “individual maintenance home health workers”—a category that includes registered nurses, licensed practical nurses, and certain therapists who work in private homes—to be “public employees” for similar purposes. Ill. Pub. Act no. 97–1158, 2012 Ill. Laws p. 7823. In light of the important First Amendment questions these laws raise, we granted certiorari. 570 U. S. ___ (2013). II In upholding the constitutionality of the Illinois law, the Seventh Circuit relied on this Court’s decision in Abood supra, which held that state employees who choose not to join a public-sector union may nevertheless be compelled to pay an agency fee to support union work that is related to the collective-bargaining process. Id., at 235–236. Two Terms ago, in Knox v. Service Employees, 567 U. S. ___ (2012), we pointed out that Abood is “something of an anomaly.” Id., at ___ (slip op., at 11). “ ‘The primary purpose’ of permitting unions to collect fees from nonmembers,” we noted, “is ‘to prevent nonmembers from free-riding on the union’s efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred.’ ” Id., at ___ (slip op., at 10) (quoting Davenport v. Washington Ed. Assn., 551 U. S. 177, 181 (2007) ). But “[s]uch free-rider arguments . . . are generally insufficient to overcome First Amendment objections.” 567 U. S., at ___ (slip op., at 10–11). For this reason, Abood stands out, but the State of Illinois now asks us to sanction what amounts to a very significant expansion of Abood—so that it applies, not just to full-fledged public employees, but also to others who are deemed to be public employees solely for the purpose of unionization and the collection of an agency fee. Faced with this argument, we begin by examining the path that led to this Court’s decision in Abood. A The starting point was Railway Employes v. Hanson, 351 U. S. 225 (1956) , a case in which the First Amendment was barely mentioned. The dispute in Hanson resulted from an amendment to the Railway Labor Act (RLA). Id., at 229, 232. As originally enacted in 1926, the Act did not permit a collective-bargaining agreement to require employees to join or make any payments to a union. See Machinists v. Street, 367 U. S. 740, 750 (1961) . At that time and for many years thereafter, there was “a strong and long-standing tradition of voluntary unionism on the part of the standard rail unions.” Ibid. Eventually, however, the view of the unions changed. See id., at 760–761. The RLA’s framework for resolving labor disputes “is more complex than that of any other industry,” id., at 755, and amendments enacted in 1934 increased the financial burden on unions by creating the 36-member National Railroad Adjustment Board, one-half of whose members were appointed and paid by the unions. Id., at 759–760. In seeking authorization to enter into union-shop agreements, i.e., agreements requiring all employees to join a union and thus pay union dues, see Oil Workers, 426 U. S., at 409, n. 1, the unions’ principal argument “was based on their role in this regulatory framework.” Street, 367 U. S., at 761. A union spokesman argued that the financial burdens resulting from the Act’s unique and complex scheme justified union-shop provisions in order to provide the unions with needed dues. Ibid. These arguments were successful, and the Act was amended in 1951 to permit a railroad and a union to enter into an agreement containing a union-shop provision. This amendment brought the Act into conflict with the laws of States that guaranteed the “right to work” and thereby outlawed the union shop. Nebraska, the setting of Hanson, was one such State. 351 U. S., at 228. In Hanson, the Union Pacific Railroad Company and its unionized workers entered into a collective-bargaining agreement that contained a provision requiring employees, “as a condition of their continued employment,” to join and remain members of the union. Id., at 227. Employees who did not want to join the union brought suit in state court, contending that the union-shop provision violated a provision of the Nebraska Constitution banning adverse employment actions “ ‘because of refusal to join or affiliate with a labor organization.’ ” Id., at 228 (quoting Neb. Const., Art. XV, §13). The employer countered that the RLA trumped the Nebraska provision, but the Nebraska courts agreed with the employees and struck down the union-shop agreement. When the case reached this Court, the primary issue was whether the provision of the RLA that authorized union-shop agreements was “germane to the exercise of power under the Commerce Clause.” 351 U. S., at 234–235. In an opinion by Justice Douglas, the Court held that this provision represented a permissible regulation of commerce. The Court reasoned that the challenged provision “ ‘stabilized labor-management relations’ ” and thus furthered “ ‘industrial peace.’ ” Id., at 233–234. The employees also raised what amounted to a facial constitutional challenge to the same provision of the RLA. The employees claimed that a “union shop agreement forces men into ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought protected by the Bill of Rights.” Id., at 236. But because the lawsuit had been filed shortly after the collective-bargaining agreement was approved, the record contained no evidence that the union had actually engaged in political or ideological activities.[4] The Hanson Court dismissed the objecting employees’ First Amendment argument with a single sentence. The Court wrote: “On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar.” Id., at 238. This explanation was remarkable for two reasons. First, the Court had never previously held that compulsory membership in and the payment of dues to an integrated bar was constitutional, and the constitutionality of such a requirement was hardly a foregone conclusion. Indeed, that issue did not reach the Court until five years later, and it produced a plurality opinion and four separate writings. See Lathrop v. Donohue, 367 U. S. 820 (1961) (plurality opinion).[5] Second, in his Lathrop dissent, Justice Douglas, the author of Hanson, came to the conclusion that the First Amendment did not permit compulsory membership in an integrated bar. See 367 U. S., at 878–880. The analogy drawn in Hanson, he wrote, fails. “Once we approve this measure,” he warned, “we sanction a device where men and women in almost any profession or calling can be at least partially regimented behind causes which they oppose.” 367 U. S., at 884. He continued: “I look on the Hanson case as a narrow exception to be closely confined. Unless we so treat it, we practically give carte blanche to any legislature to put at least professional people into goose-stepping brigades. Those brigades are not compatible with the First Amendment.” Id., at 884–885 (footnote omitted). The First Amendment analysis in Hanson was thin, and the Court’s resulting First Amendment holding was narrow. As the Court later noted, “all that was held in Hanson was that [the RLA] 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.” Street, 367 U. S., at 749 (emphasis added). The Court did not suggest that “industrial peace” could justify a law that “forces men into ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought,” or a law that forces a person to “conform to [a union’s] ideology.” Hanson, supra, at 236–237. The RLA did not compel such results, and the record in Hanson did not show that this had occurred. B Five years later, in Street, supra, the Court considered another case in which workers objected to a union shop. Employees of the Southern Railway System raised a First Amendment challenge, contending that a substantial part of the money that they were required to pay to the union was used to support political candidates and causes with which they disagreed. A Georgia court enjoined the enforcement of the union-shop provision and entered judgment for the dissenting employees in the amount of the payments that they had been forced to make to the union. The Georgia Supreme Court affirmed. Id., at 742–745. Reviewing the State Supreme Court’s decision, this Court recognized that the case presented constitutional questions “of the utmost gravity,” id., at 749, but the Court found it unnecessary to reach those questions. Instead, the Court construed the RLA “as not vesting the unions with unlimited power to spend exacted money.” Id., at 768. Specifically, the Court held, the Act “is to be construed to deny the unions, over an employee’s objection, the power to use his exacted funds to support political causes which he opposes.” Id., at 768–769. Having construed the RLA to contain this restriction, the Street Court then went on to discuss the remedies available for employees who objected to the use of union funds for political causes. The Court suggested two: The dissenting employees could be given a refund of the portion of their dues spent by the union for political or ideological purposes, or they could be given a refund of the portion spent on those political purposes that they had advised the union they disapproved.[6] Id., at 774–775. Justice Black, writing in dissent, objected to the Court’s suggested remedies, and he accurately predicted that the Court’s approach would lead to serious practical problems. Id., at 796–797. That approach, he wrote, while “very lucrative to special masters, accountants and lawyers,” would do little for “the individual workers whose First Amendment freedoms have been flagrantly violated.” Id., at 796. He concluded: “Unions composed of a voluntary membership, like all other voluntary groups, should be free in this country to fight in the public forum to advance their own causes, to promote their choice of candidates and parties and to work for the doctrines or the laws they favor. But to the extent that Government steps in to force people to help espouse the particular causes of a group, that group—whether composed of railroad workers or lawyers—loses its status as a voluntary group.” Ibid. Justice Frankfurter, joined by Justice Harlan, also dissented, arguing that the Court’s remedy was conceptually flawed because a union may further the objectives of members by political means. See id., at 813–815. He noted, for example, that reports from the AFL–CIO Executive Council “emphasize that labor’s participation in urging legislation and candidacies is a major one.” Id., at 813. In light of “the detailed list of national and international problems on which the AFL–CIO speaks,” he opined, “it seems rather naive” to believe “that economic and political concerns are separable.” Id., at 814. C This brings us to Abood, which, unlike Hanson and Street, involved a public-sector collective-bargaining agreement. The Detroit Federation of Teachers served “as the exclusive representative of teachers employed by the Detroit Board of Education.” 431 U. S., at 211–212. The collective-bargaining agreement between the union and the board contained an agency-shop clause requiring every teacher to “pay the Union a service charge equal to the regular dues required of Union members.” Id., at 212. A putative class of teachers sued to invalidate this clause. Asserting that “they opposed collective bargaining in the public sector,” the plaintiffs argued that “ ‘a substantial part’ ” of their dues would be used to fund union “ ‘activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve, and in which they will have no voice.’ ” Id., at 212–213. This Court treated the First Amendment issue as largely settled by Hanson and Street. 431 U. S., at 217, 223.The Court acknowledged that Street was resolved as a matter of statutory construction without reaching any constitutional issues, 431 U. S., at 220, and the Court recognized that forced membership and forced contributions impinge on free speech and associational rights, id., at 223. But the Court dismissed the objecting teachers’ constitutional arguments with this observation: “[T]he judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” Id., at 222. The Abood Court understood Hanson and Street to have upheld union-shop agreements in the private sector based on two primary considerations: the desirability of “labor peace” and the problem of “ ‘free riders[hip].’ ” 431 U. S., at 220–222, 224. The Court thought that agency-shop provisions promote labor peace because the Court saw a close link between such provisions and the “principle of exclusive union representation.” Id., at 220. This principle, the Court explained, “prevents inter-union rivalries from creating dissension within the work force and eliminating the advantages to the employee of collectivization.” Id., at 220–221. In addition, the Court noted, the “designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment.” Id., at 220. And the Court pointed out that exclusive representation “frees the employer from the possibility of facing conflicting demands from different unions, and permits the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations.” Id., at 221. Turning to the problem of free ridership, Abood noted that a union must “ ‘fairly and equitably . . . represent all employees’ ” regardless of union membership, and the Court wrote as follows: The “union-shop arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become ‘free riders’ to refuse to contribute to the union while obtaining benefits of union representation.” Id., at 221–222. The plaintiffs in Abood argued that Hanson and Street should not be given much weight because they did not arise in the public sector, and the Court acknowledged that public-sector bargaining is different from private-sector bargaining in some notable respects. 431 U. S., at 227–228. For example, although public and private employers both desire to keep costs down, the Court recognized that a public employer “lacks an important discipline against agreeing to increases in labor costs that in a market system would require price increases.” Id., at 228. The Court also noted that “decisionmaking by a public employer is above all a political process” undertaken by people “ultimately responsible to the electorate.” Ibid. Thus, whether a public employer accedes to a union’s demands, the Court wrote, “will depend upon a blend of political ingredients,” thereby giving public employees “more influence in the decisionmaking process that is possessed by employees similarly organized in the private sector.” Ibid. But despite these acknowledged differences between private- and public-sector bargaining, the Court treated Hanson and Street as essentially controlling. Instead of drawing a line between the private and public sectors, the Abood Court drew a line between, on the one hand, a union’s expenditures for “collective-bargaining, contract administration, and grievance-adjustment purposes,” 431 U. S., at 232, and, on the other, expenditures for political or ideological purposes. Id., at 236. D The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then. The Abood Court seriously erred in treating Hanson and Street as having all but decided the constitutionality of compulsory payments to a public-sector union. As we have explained, Street was not a constitutional decision at all, and Hanson disposed of the critical question in a single, unsupported sentence that its author essentially abandoned a few years later. Surely a First Amendment issue of this importance deserved better treatment. The Abood Court fundamentally misunderstood the holding in Hanson, which was really quite narrow. As the Court made clear in Street, “all that was held in Hanson was that [the RLA] 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.” 367 U. S., at 749 (emphasis added). In Abood, on the other hand, the State of Michigan did more than simply authorize the imposition of an agency fee. A state instrumentality, the Detroit Board of Education, actually imposed that fee. This presented a very different question. Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector. In the years since Abood, as state and local expenditures on employee wages and benefits have mushroomed, the importance of the difference between bargaining in the public and private sectors has been driven home.[7] Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining pur-poses and those that are made to achieve political ends. In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the em-ployer; political advocacy and lobbying are directed at the government. But in the public sector, both collective-bargaining and political advocacy and lobbying are directed at the government. Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either “chargeable” (in Abood’s terms, expendituresfor “collective-bargaining, contract administration, andgrievance-adjustment purposes,” id., at 232) or noncharge-able (i.e., expenditures for political or ideological purposes, id., at 236). In the years since Abood, the Court has strug-gled repeatedly with this issue. See Ellis v. Railway Clerks, 466 U. S. 435 (1984) ; Teachers v. Hudson, 475 U. S. 292 (1986) ; Lehnert v. Ferris Faculty Assn., 500 U. S. 507 (1991) ; Locke v. Karass, 555 U. S. 207 (2009) . In Lehnert, the Court held that “chargeable activities must (1) be ‘germane’ to collective-bargaining activity; (2) be justified by the government’s vital policy interest in labor peace and avoiding ‘free riders’; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop.” 500 U. S., at 519. But as noted in Justice Scalia’s dissent in that case, “each one of the three ‘prongs’ of the test involves a substantial judgment call (What is ‘germane’? What is ‘justified’? What is a ‘significant’ additional burden).” Id., at 551 (opinion concurring in judgment in part and dissenting in part). Abood likewise did not foresee the practical problems that would face objecting nonmembers. Employees who suspect that a union has improperly put certain expenses in the “germane” category must bear a heavy burden if they wish to challenge the union’s actions. “[T]he onus is on the employees to come up with the resources to mount the legal challenge in a timely fashion,” Knox, 567 U. S., at ___ (slip op., at 19) (citing Lehnert, supra, at 513), and litigating such cases is expensive. Because of the open-ended nature of the Lehnert test, classifying particular categories of expenses may not be straightforward. See Jibson v. Michigan Ed. Assn.–NEA, 30 F. 3d 723, 730 (CA6 1994)). And although Hudson required that a union’s books be audited, auditors do not themselves review the correctness of a union’s categorization. See Knox, supra, at ___ (slip op., at 18–19) (citing Andrews v. Education Assn. of Cheshire, 829 F. 2d 335, 340 (CA2 1987)). See also American Federation of Television and Recording Artists, Portland Local, 327 N. L. R. B. 474, 477 (1999) (“It is settled that determinations concerning whether particular expenditures are chargeable are legal determinations which are outside the expertise of the auditor. Thus, as we have stated, the function of the auditor is to verify that the expenditures that the union claims it made were in fact made for the purposes claimed, not to pass on the correctness of the union’s allocation of expenditures to the chargeable and nonchargeable categories”); California Saw and Knife Works, 320 N. L. R. B. 224, 241 (1995) (“We first agree [that the company at issue] did not violate its duty of fair representation by failing to use an independent auditor to determine the allocation of chargeable and nonchargeable expenditures”); Price v. International Union, United Auto, Aerospace & Agricultural Implement Workers of Am., 927 F. 2d 88, 93–94 (CA2 1991) (“Hudson requires only that the usual function of an auditor be performed, i.e., to determine that the expenses claimed were in fact made. That function does not require that the auditor make a legal decision as to the appropriateness of the allocation of expenses to the chargeable and non-chargeable categories”). Finally, a critical pillar of the Abood Court’s analysis rests on an unsupported empirical assumption, namely, that the principle of exclusive representation in the public sector is dependent on a union or agency shop. As we will explain, see infra, at 31–34, this assumption is unwarranted. III A Despite all this, the State of Illinois now asks us to approve a very substantial expansion of Abood’s reach. Abood involved full-fledged public employees, but in this case, the status of the personal assistants is much different. The Illinois Legislature has taken pains to specify that personal assistants are public employees for one purpose only: collective bargaining. For all other pur-poses, Illinois regards the personal assistants as private-sector employees. This approach has important practical consequences. For one thing, the State’s authority with respect to these two groups is vastly different. In the case of full-fledged public employees, the State establishes all of the duties imposed on each employee, as well as all of the qualifications needed for each position. The State vets applicants and chooses the employees to be hired. The State provides or arranges for whatever training is needed, and it supervises and evaluates the employees’ job performance and imposes corrective measures if appropriate. If a state employee’s performance is deficient, the State may discharge the employee in accordance with whatever procedures are required by law. With respect to the personal assistants involved in this case, the picture is entirely changed. The job duties of personal assistants are specified in their individualized Service Plans, which must be approved by the customer and the customer’s physician. 89 Ill. Admin. Code §684.10. Customers have complete discretion to hire any personal assistant who meets the meager basic qualifications that the State prescribes in §686.10. See §676.30(b) (the customer “is responsible for controlling all aspects of the employment relationship between the customer and the [personal assistant], including, without limitation, locating and hiring the [personal assistant]” (emphasis added)); §684.20(b) (“complete discretion in which Per-sonal Assistant [the customer] wishes to hire” subject to baseline eligibility requirements). Customers supervise their personal assistants on a daily basis, and no provision of the Illinois statute or implementing regulations gives the State the right to enter the home in which the personal assistant is employed for the purpose of checking on the personal assistant’s job performance. Cf. §676.20(b) (customer controls “without limitation . . . supervising the work performed by the [personal assistant], imposing . . . disciplinary action against the [personal assistant]”). And while state law mandates an annual review of each personal assistant’s work, that evaluation is also controlled by the customer. §§686.10(k), 686.30. A state counselor is assigned to assist the customer in performing the review but has no power to override the customer’s evaluation. See ibid. Nor do the regulations empower the State to discharge a personal assistant for substandard performance. See n. 1, supra. Discharge, like hiring, is entirely in the hands of the customer. See §676.30. Consistent with this scheme, under which personal assistants are almost entirely answerable to the customers and not to the State, Illinois withholds from personal assistants most of the rights and benefits enjoyed by full-fledged state employees. As we have noted already, state law explicitly excludes personal assistants from statutory retirement and health insurance benefits. Ill. Comp. Stat., ch. 20, §2405/3(f ). It also excludes personal assistants from group life insurance and certain other employee benefits provided under the State Employees Group Insurance Act of 1971. Ibid. (“Personal assistants shall not be covered by the State Employees Group Insurance Act of 1971”). And the State “does not provide paid vacation, holiday, or sick leave” to personal assistants. 89 Ill. Admin. Code §686.10(h)(7). Personal assistants also appear to be ineligible for a host of benefits under a variety of other state laws, including the State Employee Vacation Time Act (see Ill. Stat., ch. 5, §360/1); the State Employee Health Savings Account Law (see Ill. Stat., ch. 5, §377/10–1); the State Employee Job Sharing Act (see Ill. Stat., ch. 5, §380/0.01); the State Employee Indemnification Act (see Ill. Stat., ch. 5, §350/2); and the Sick Leave Bank Act. See Ill. Stat., ch. 5, §400/1. Personal assistants are apparently not entitled to the protection that the Illinois Whistleblower Act provides for full-fledged state employees. See Ill. Stat., ch. 740, §174/1. And it likewise appears that personal assistants are shut out of many other state employee programs and benefits. The Illinois Department of Central Management Services lists many such programs and benefits, including a deferred compensation program, full worker’s compensation privileges,[8] behavioral health programs, a program that allows state employees to retain health insurance for a time after leaving state employment, a commuter savings program, dental and vision programs, and a flexible spending program.[9] All of these programs and benefits appear to fall within the provision of the Rehabilitation Program declaring that personal assistants are not state employees for “any purposes” other than collective bargaining. See Ill. Comp. Stat., ch. 20, §2405/3(f ). Just as the State denies personal assistants most of the rights and benefits enjoyed by full-fledged state workers, the State does not assume responsibility for actions taken by personal assistants during the course of their employment. The governing statute explicitly disclaims “vicarious liability in tort.” Ibid. So if a personal assistant steals from a customer, neglects a customer, or abuses a customer, the State washes its hands. Illinois deems personal assistants to be state employees for one purpose only, collective bargaining,[10] but the scope of bargaining that may be conducted on their behalf is sharply limited. Under the governing Illinois statute, collective bargaining can occur only for “terms and conditions of employment that are within the State’s control.” Ill. Comp. Stat., ch. 20, §2405/3(f ). That is not very much. As an illustration, consider the subjects of mandatory bargaining under federal and state labor law that are out of bounds when it comes to personal assistants. Under federal law, mandatory subjects include the days of the week and the hours of the day during which an employee must work,[11] lunch breaks,[12] holidays,[13] vacations,[14] termination of employment,[15] and changes in job duties.[16] Illinois law similarly makes subject to mandatory collective-bargaining decisions concerning the “hours and terms and conditions of employment.” Belvidere v. Illinois State Labor Relations Bd., 181 Ill. 2d 191, 201, 692 N. E. 2d 295, 301 (1998); see also, e.g., Aurora Sergeants Assn., 24 PERI ¶25 (2008) (holding that days of the week worked by police officers is subject to mandatory collective bargaining). But under the Rehabilitation Program, all these topics are governed by the Service Plan, with respect to which the union has no role. See §676.30(b) (the customer “is responsible for controlling all aspects of the employment relationship between the customer and the PA, including, without limitation, locating and hiring the PA, training the PA, directing, evaluating, and otherwise supervising the work performed by the PA, imposing . . . disciplinary action against the PA, and terminating the employment relationship between the customer and the PA”); §684.50 (the Service Plan must specify “the frequency with which the specific tasks are to be provided” and “the number of hours each task is to be provided per month”). B 1 The unusual status of personal assistants has important implications for present purposes. Abood’s rationale, whatever its strengths and weaknesses, is based on the assumption that the union possesses the full scope of powers and duties generally available under American labor law. Under the Illinois scheme now before us, however, the union’s powers and duties are sharply circumscribed, and as a result, even the best argument for the “extraordinary power” that Abood allows a union to wield, see Davenport, 551 U. S., at 184, is a poor fit. In our post-Abood cases involving public-sector agency-fee issues, Abood has been a given, and our task has been to attempt to understand its rationale and to apply it in a way that is consistent with that rationale. In that vein, Abood’s reasoning has been described as follows. The mere fact that nonunion members benefit from union speech is not enough to justify an agency fee because “private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for.” Lehnert, 500 U. S., at 556 (opinion of Scalia, J.). What justifies the agency fee, the argument goes, is the fact that the State compels the union to promote and protect the interests of nonmembers. Ibid. Specifically, the union must not discriminate between members and nonmembers in “negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances.” Ibid. This means that the union “cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others.” Ibid. And it has the duty to provide equal and effective representation for nonmembers in grievance proceedings, see Ill. Comp. Stat. Ann., ch. 5, §§315/6, 315/8, an undertaking that can be very involved. See, e.g., SEIU: Member Resources, available at www.seiu.or /a/members /disputes-and-grievances-rights-procedures-and-best-practices.php (detailing the steps involved in adjusting grievances). This argument has little force in the situation now before us. Illinois law specifies that personal assistants “shall be paid at the hourly rate set by law,” see 89 Ill. Admin. Code §686.40(a), and therefore the union cannot be in the position of having to sacrifice higher pay for its members in order to protect the nonmembers whom it is obligated to represent. And as for the adjustment of grievances, the union’s authority and responsibilities are narrow, as we have seen. The union has no authority with respect to any grievances that a personal assistant may have with a customer, and the customer has virtually complete control over a personal assistant’s work. The union’s limited authority in this area has important practical implications. Suppose, for example that a customer fires a personal assistant because the customer wrongly believes that the assistant stole a fork. Or suppose that a personal assistant is discharged because the assistant shows no interest in the customer’s favorite daytime soaps. Can the union file a grievance on behalf of the assistant? The answer is no. It is true that Illinois law requires a collective-bargaining agreement to “contain a grievance resolution procedure which shall apply to all employees in the bargaining unit,” Ill. Comp. Stat., ch. 5, §315/8, but in the situation here, this procedure appears to relate solely to any grievance that a personal assistant may have with the State,[17] not with the customer for whom the personal assistant works.[18] 2 Because of Abood’s questionable foundations, and because the personal assistants are quite different from full-fledged public employees, we refuse to extend Abood to the new situation now before us.[19] Abood itself has clear boundaries; it applies to public employees. Extending those boundaries to encompass partial-public employees, quasi-public employees, or simply private employees would invite problems. Consider a continuum, ranging, on the one hand, from full-fledged state employees to, on the other hand, individuals who follow a common calling and benefit from advocacy or lobbying conducted by a group to which they do not belong and pay no dues. A State may not force every person who benefits from this group’s efforts to make payments to the group. See Lehnert, 500 U. S., at 556 (opinion of Scalia, J.). But what if regulation of this group is increased? What if the Federal Government or a State begins to provide or increases subsidies in this area? At what point, short of the point at which the individuals in question become full-fledged state employees, should Abood apply? If respondents’ and the dissent’s views were adopted, a host of workers who receive payments from a governmental entity for some sort of service would be candidates for inclusion within Abood’s reach. Medicare-funded home health employees may be one such group. See Brief for Petitioners 51; 42 U. S. C. §1395x(m); 42 CFR §424.22(a). The same goes for adult foster care providers in Oregon (Ore. Rev. Stat. §443.733 (2013)) and Washington (Wash. Rev. Code §41.56.029 (2012)) and certain workers under the federal Child Care and Development Fund programs (45 CFR §98.2). If we allowed Abood to be extended to those who are not full-fledged public employees, it would be hard to see just where to draw the line,[20] and we therefore confine Abood’s reach to full-fledged state employees.[21] IV A Because Abood is not controlling, we must analyze the constitutionality of the payments compelled by Illinois law under generally applicable First Amendment standards. As we explained in Knox, “[t]he government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.” 567 U. S., at ___ (slip op. at 8–9); see also, e.g., R.A.V. v. St. Paul, 505 U. S. 377, 382 (1992) ; Riley v. National Federation of Blind of N.C., 487 U. S. 781, 797 (1988) West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) ; Wooley v. Maynard, 430 U. S. 705 –715 (1977). And “compelled funding of the speech of other private speakers or groups” presents the same dangers as compelled speech. Knox, supra, at ___ (slip op. at 9). As a result, we explained in Knox that an agency-fee provision imposes “a ‘significant impingement on First Amendment rights,’ ” and this cannot be tolerated unless it passes “exacting First Amendment scrutiny.” 567 U. S., at ___ (slip op. at 9–10). In Knox, we considered specific features of an agency-shop agreement—allowing a union to impose upon nonmembers a special assessment or dues increase without providing notice and without obtaining the nonmembers’ affirmative agreement—and we held that these features could not even satisfy the standard employed in United States v. United Foods, Inc., 533 U. S. 405, 415 (2001) , where we struck down a provision that compelled the subsidization of commercial speech. We did not suggest, however, that the compelled speech in Knox was like the commercial speech in United Foods. On the contrary, we observed that “[t]he subject of the speech at issue [in United Foods]—promoting the sale of mushrooms—was not one that is likely to stir the passions of many, but the mundane commercial nature of that speech only highlights the importance of our analysis and our holding.” Knox, supra, at ___ (slip op. at 9). While the features of the agency-fee provision in Knox could not meet even the commercial-speech standard employed in United Foods, it is apparent that the speech compelled in this case is not commercial speech. Our precedents define commercial speech as “speech that does no more than propose a commercial transaction,” United Foods, supra, at 409 (citing Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S.748, 761–762 (1976)), and the union speech in question in this case does much more than that. As a consequence,it is arguable that the United Foods standard is toopermissive. B For present purposes, however, no fine parsing of levels of First Amendment scrutiny is needed because the agency-fee provision here cannot satisfy even the test used in Knox. Specifically, this provision does not serve a “ ‘compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.’ ” Knox, supra, at ___ (slip op. at 10) (quoting Roberts v. United States Jaycees, 468 U. S. 609, 623 (1984) ). Respondents contend that the agency-fee provision in this case furthers several important interests, but none is sufficient. 1 Focusing on the benefits of the union’s status as the exclusive bargaining agent for all employees in the unit, respondents argue that the agency-fee provision promotes “labor peace,” but their argument largely misses the point. Petitioners do not contend that they have a First Amendment right to form a rival union. Nor do they challenge the authority of the SEIU–HII to serve as the exclusive representative of all the personal assistants in bargaining with the State. All they seek is the right not to beforced to contribute to the union, with which they broadly disagree. A union’s status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked. For example, employees in some federal agencies may choose a union to serve as the exclusive bargaining agent for the unit, but no employee is required to join the union or to pay any union fee. Under federal law, in agencies in which unionization is permitted, “[e]ach employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right.” 5 U. S. C. §7102 (emphasis added).[22] Moreover, even if the agency fee provision at issue here were tied to the union’s status as exclusive bargaining agents, features of the Illinois scheme would still undermine the argument that the agency fee plays an important role in maintaining labor peace. For one thing, any threat to labor peace is diminished because the personal assistants do not work together in a common state facility but instead spend all their time in private homes, either the customers’ or their own. Cf. Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 51 (1983) (“[E]xclusion of the rival union may reasonably be considered a means of insuring labor-peace within the schools”). Federal labor law reflects the fact that the organization of household workers like the personal assistants does not further the interest of labor peace. “[A]ny individual employed . . . in the domestic service of any family or person at his home” is excluded from coverage under the National Labor Relations Act. See 29 U. S. C. §152(3). The union’s very restricted role under the Illinois lawis also significant. Since the union is largely limited to petitioning the State for greater pay and benefits, the specter of conflicting demands by personal assistants is lessened. And of course, State officials must deal on a daily basis with conflicting pleas for funding in many contexts. 2 Respondents also maintain that the agency-fee provision promotes the welfare of personal assistants and thus contributes to the success of the Rehabilitation Program. As a result of unionization, they claim, the wages and benefits of personal assistants have been substantially improved;[23] orientation and training programs, background checks, and a program to deal with lost and erroneous paychecks have been instituted;[24] and a procedure was established to resolve grievances arising under the collective-bargaining agreement (but apparently not grievances relating to a Service Plan or actions taken by a customer).[25] The thrust of these arguments is that the union has been an effective advocate for personal assistants in the State of Illinois, and we will assume that this is correct. But in order to pass exacting scrutiny, more must be shown. The agency-fee provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join. No such showing has been made. In claiming that the agency fee was needed to bring about the cited improvements, the State is in a curious position. The State is not like the closed-fisted employer that is bent on minimizing employee wages and benefits and that yields only grudgingly under intense union pressure. As Governor Blagojevich put it in the executive order that first created the Illinois program, the State took the initiative because it was eager for “feedback” regarding the needs and views of the personal assistants. See App. to Pet. for Cert. 46. Thereafter, a majority of the personal assistants voted to unionize. When they did so, they must have realized that this would require the payment of union dues, and therefore it may be presumed that a high percentage of these personal assistants became union members and are willingly paying union dues. Why are these dues insufficient to enable the union to provide “feedback” to a State that is highly receptive to suggestions for increased wages and other improvements? A host of organizations advocate on behalf of the interests of persons falling within an occupational group, and many of these groups are quite successful even though they are dependent on voluntary contributions. Respondents’ showing falls far short of what the First Amendment demands. V Respondents and their supporting amici make two additional arguments that must be addressed. A First, respondents and the Solicitor General urge us to apply a balancing test derived from Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968) . See Brief for Respondent Quinn 25–26; Brief for SEIU–HII 35–36; Brief for United States as Amicus Curiae 11. And they claim that under the Picker-ing analysis, the Illinois scheme must be sustained. This argument represents an effort to find a new justification for the decision in Abood, because neither in that case nor in any subsequent related case have we seen Abood as based on Pickering balancing.[26] In any event, this effort to recast Abood falls short. To begin, the Pickering test is inapplicable because with respect to the personal assistants, the State is not acting in a traditional employer role.[27] But even if it were, application of Pickering would not sustain the agency-feeprovision. Pickering and later cases in the same line concern the constitutionality of restrictions on speech by public employees. Under those cases, employee speech is unprotected if it is not on a matter of public concern (or is pursuantto an employee’s job duties), but speech on matters of public concern may be restricted only if “the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees” outweighs “the interests of the [employee], as a citizen, in commenting upon matters of public concern.” 391 U. S., at 568. See also Borough of Duryea v. Guarnieri, 564 U. S. ___ (2011); Garcetti v. Ceballos, 547 U. S. 410 (2006) ; Waters v. Churchill, 511 U. S. 661, 674 (1994) (plurality opinion); Connick v. Myers, 461 U. S. 138 (1983) . Attempting to fit Abood into the Pickering framework, the United States contends that union speech that is germane to collective bargaining does not address matters of public concern and, as a result, is not protected. Taking up this argument, the dissent insists that the speech at issue here is not a matter of public concern. According to the dissent, this is “the prosaic stuff of collective bargaining.” Post, at 9. Does it have any effect on the public? The dissent’s answer is: “not terribly much.” Post, at 20. As the dissent sees it, speech about such funding is not qualitatively different from the complaints of a small-town police chief regarding such matters as the denial of $338 in overtime pay or directives concerning the use of police vehicles and smoking in the police station. See post, at 20; Borough of Duryea, supra, at ___ (slip op. at 3).[28] This argument flies in the face of reality. In this case, for example, the category of union speech that is germane to collective bargaining unquestionably includes speech in favor of increased wages and benefits for personal assistants. Increased wages and benefits for personal assistants would almost certainly mean increased expenditures under the Medicaid program, and it is impossible to argue that the level of Medicaid funding (or, for that matter, state spending for employee benefits in general) is not a matter of great public concern. In recent years, Medicaid expenditures have represented nearly a quarter of all state expenditures. See National Association of State Budget Officers, Summary: Fall 2013 Fiscal Survey of States (Dec. 10, 2013), online at http:// www.nasbo.org. “Medicaid has steadily eaten up a growing share of state budgets.”[29] In fiscal year 2014, “[t]hirty-five states increased spending for Medicaid for a net increase of $6.8 billion.” Ibid. Accordingly, speech by a powerful union that relates to the subject of Medicaid funding cannot be equated with the sort of speech that our cases have treated as concerning matters of only private concern. See, e.g., San Diego v. Roe, 543 U. S. 77 (2004) (per curiam); Connick, supra, at 148 (speech that “reflect[ed] one employee’s dissatisfaction with a transfer and an attempt to turn that displeasure into a cause célèbre” (emphasis added)). For this reason, if Pickering were to be applied, it would be necessary to proceed to the next step of the analysis prescribed in that case, and this would require an assessment of both the degree to which the agency-fee provision promotes the efficiency of the Rehabilitation Program and the degree to which that provision interferes with the First Amendment interests of those personal assistants who do not wish to support the union. We need not discuss this analysis at length because it is covered by what we have already said. Agency-fee provisions unquestionably impose a heavy burden on the First Amendment interests of objecting employees. See Knox, 567 U. S., at ___ (slip op. at 19) (citing Lehnert, 500 U. S., at 513; Jibson v. Michigan Ed. Assn., 30 F. 3d 723, 730 (CA6 1994). And on the other side of the balance, the arguments on which the United States relies—relating to the promotion of labor peace and the problem of free riders—have already been discussed. Thus, even if the permissibility of the agency-shop provision in the collective-bargaining agreement now at issue were analyzed under Pickering, that provision could not be upheld. B Respondents contend, finally, that a refusal to extend Abood to cover the situation presented in this case will call into question our decisions in Keller v. State Bar of Cal. 496 U. S. 1 (1990) , and Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217 (2000) . Respondents are mistaken. In Keller, we considered the constitutionality of a rule applicable to all members of an “integrated” bar, i.e., “an association of attorneys in which membership and dues are required as a condition of practicing law.” 496 U. S., at 5. We held that members of this bar could not be required to pay the portion of bar dues used for political or ideological purposes but that they could be required to pay the portion of the dues used for activities connected with proposing ethical codes and disciplining bar members. Id., at 14. This decision fits comfortably within the framework applied in the present case. Licensed attorneys are subject to detailed ethics rules, and the bar rule requiring the payment of dues was part of this regulatory scheme. The portion of the rule that we upheld served the “State’s interest in regulating the legal profession and improving the quality of legal services.” Ibid. States also have a strong interest in allocating to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices. Thus, our decision in this case is wholly consistent with our holding in Keller. Contrary to respondents’ submission, the same is true with respect to Southworth, supra. In that case, we upheld the constitutionality of a university-imposed mandatory student activities fee that was used in part to support a wide array of student groups that engaged in expressive activity. The mandatory fee was challenged by students who objected to some of the expression that the fee was used to subsidize, but we rejected that challenge, and our holding is entirely consistent with our decision in this case. Public universities have a compelling interest in promoting student expression in a manner that is viewpoint neutral. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) . This may be done by providing funding for a broad array of student groups. If the groups funded are truly diverse, many students are likely to disagree with things that are said by some groups. And if every student were entitled to a partial exemption from the fee requirement so that no portion of the student’s fee went to support a group that the student did not wish to support, the administrative problems would likely be insuperable. Our decision today thus does not undermine Southworth. * * * For all these reasons, we refuse to extend Abood in the manner that Illinois seeks. If we accepted Illinois’ argument, we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support. The First Amendment prohibits the collection of an agency fee from personal assistants in the Rehabilitation Program who do not want to join or support the union. The judgment of the Court of Appeals is reversed in part and affirmed in part,[30] and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 Although this regulation states clearly that a customer has complete discretion with respect to hiring and firing a personal assistant, the dissent contends that the State also has the authority to end the employment of a personal assistant whose performance is not satisfactory. Nothing in the regulations supports this view. Under 89 Ill. Admin. Code §677.40(d), the State may stop paying a personal assistant if it is found that the assistant does not meet “the standards established by DHS as found at 89 Ill. Adm. Code 686.” These standards are the basic hiring requirements set out in §686.10, see n. 2, . Providing adequate performance after hiring is nowhere mentioned in §686.10. 2 It is true, as the dissent notes, , at 4, that a personal assistant must provide two written or oral references, see §686.10(c), but judging the adequacy of these references is the sole prerogative of the customer. See §676.30(b). And while the regulations say that an applicant must have either previous experience or training, see §686.10(f ), they also provide that a customer has complete discretion to judge the adequacy of training and prior experience. See §684.20(b) (the customer has complete discretion with respect to hiring and training a personal assistant). See also §686.10(b) (the customer may hire a minor—even under some circumstances, a person as young as 14); §686.10(f ) (the customer may hire a personal assistant who was never previously employed so long as the assistant has adequate training); §684.20(b) (criminal record check not required). 3 The other five petitioners are personal assistants under a similar Illinois program called the “Disabilities Program.” See, , at 39–40, and n. 30. 4 The employees’ claim necessarily raised the question of governmental action, since the does not restrict private conduct, and the Court, in a brief passage, concluded that governmental action was present. This was so, the Court reasoned, because the union-shop provision of the RLA took away a right that employees had previously enjoyed under state law. 351 U. S., at 232–233. 5 A related question arose in v. , , which we discuss , at 37–38. 6 Only four Justices fully agreed with this approach, but a fifth, Justice Douglas, went along due to “the practical problem of mustering five Justices for a judgment in this case.” ., at 778–779 (concurring opinion). 7 Recent experience has borne out this concern. See DiSalvo, The Trouble with Public Sector Unions, National Affairs No. 5, p. 15 (2010) (“In Illinois, for example, public-sector unions have helped create a situation in which the state’s pension funds report a liability of more than $100 billion, at least 50% of it unfunded”). 8 Under §686.10(h)(9), a personal assistant “may apply for Workers' Compensation benefits through [the State] . . . however, . . . the customer, not DHS, is the employer for these purposes.” 9 See www2.illinois.gov/cms/Employees/benefits/StateEmployee/Pages/default. 10 What is significant is not the label that the State assigns to the personal assistants but the substance of their relationship to the customers and the State. Our decision rests in no way on state-law labels. Cf. , at 10. Indeed, it is because the ’s meaning does not turn on state-law labels that we refuse to allow the state to make a nonemployee a full-fledged employee “[s]olely for purposes of coverage under the Illinois Public Labor Relations Act,” Ill. Comp. Stat., ch. 20, §2405/3(f), through the use of a statutory label. 11 See v. , . 12 See , 75 N. L. R. B. 905 (1948). 13 See , 24 N. L. R. B. 444 (1940). 14 See v. , 127 F. 2d 180 (CA4 1942). 15 See, 332 N. L. R. B. 547, 551 (2000). 16 See , 281 N. L. R. B. 1163, 1168 (1986). 17 Under the current collective-bargaining agreement, a “grievance” is “a dispute regarding the meaning or implementation of a specific provision brought by the Union or a Personal Assistant.” App. 51; see also , at 51–54. “Neither the Union nor the Personal Assistant can grieve the hiring or termination of the Personal Assistant, reduction in the number of hours worked by the Personal Assistant or assigned to the Customer, and/or any action taken by the Customer.” , at 51. That apparently limits the union’s role in grievance adjustments to the State’s failure to perform its duties under the collective-bargaining agreement, , if the State were to issue an incorrect paycheck, the union could bring a grievance. See , at 48 18 Contrary to the dissent’s argument, , at 10–11, the scope of the union’s bargaining authority has an important bearing on the question whether should be extended to the situation now before us. As we have explained, the best argument that can be mounted in support of is based on the fact that a union, in serving as the exclusive representative of all the employees in a bargaining unit, is required by law to engage in certain activities that benefit nonmembers and that the union would not undertake if it did not have a legal obligation to do so. But where the law withholds from the union the authority to engage in most of those activities, the argument for is weakened. Here, the dissent does not claim that the union’s approach to negotiations on wages or benefits would be any different if it were not required to negotiate on behalf of the nonmembers as well as members. And there is no dispute that the law does not require the union to undertake the burden of representing personal assistants with respect to their grievances with customers; on the contrary, the law entirely excludes the union from that process. The most that the dissent can identify is the union’s obligation to represent nonmembers regarding grievances with the State, but since most aspects of the personal assistants’ work is controlled entirely by the customers, this obligation is relatively slight. It bears little resemblance to the obligation imposed on the union in . 19 It is therefore unnecessary for us to reach petitioners’ argument that should be overruled, and the dissent’s extended discussion of is beside the point. Cf. v. , –166 (2008) (declining to extend the “implied” right of action under §10(b) of the Securities Exchange Act “beyond its present boundaries”). 20 The dissent suggests that the concept of joint employment already supplies a clear line of demarcation, see , at 8–9, but absent a clear statutory definition, employer status is generally determined based on a variety of factors that often do not provide a clear answer. See generally 22 Illinois Jurisprudence: Labor and Employment §1:02 (2012); v. , 216 Ill. 2d 567, 578–582, 839 N. E. 2d 479, 486–487 (2005); v. , 50 Ill. App. 3d 9, 12–16, 365 N. E. 2d 1045, 1048–1050 (1977). More important, the joint-employer standard was developed for use in other contexts. What matters here is whether the relationship between the State and the personal assistants is sufficient to bring this case within s reach. 21 The dissent claims that our refusal to extend to the Rehabilitation Program personal assistants produces a “perverse result” by penalizing the State for giving customers extensive control over the care they receive. , at 12. But it is not at all perverse to recognize that a State may exercise more control over its full-fledged employees than it may over those who are not full-fledged state employees or are privately employed. 22 A similar statute adopts the same rule specifically as to the U. S. Postal Service. See . 23 Wages rose from $7 per hour in 2003 to $13 per hour in 2014. Brief for Respondent Quinn 7. Current wages, according to respondents, are $11.65 per hour. Brief for Respondent SEIU–HII 6. 24 See generally Brief for Respondent Quinn 6–8; Brief for Respondent SEIU–HII 6. 25 See Brief for Respondent Quinn 7. 26 The majority cited once, in a footnote, for the proposition that “there may be limits on the extent to which an employee in a sensitive or policymaking position may freely criticize his superiors and the policies they espouse.” 431 U. S., at 230, n. 27. And it was cited once in Justice Powell’s concurrence, for the uncontroversial proposition that “ ‘the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.’ ” at 259 (opinion concurring in judgment) (quoting , 391 U. S., at 568). v. , cited only once—in dissent. 533 U. S., at 425 (opinion of , J.). Neither v. , , nor cited a single time. 27 Nor is the State acting as a “proprietor in managing its internal operations” with respect to personal assistants. See v. , 562 U. S. ___ (2011) (slip op. at 1–2, 14). 28 The dissent misunderstands or mischaracterizes our cases in this line. We have never held that the wages paid to a public-sector bargaining unit are not a matter of public concern. The $338 payment at issue in had a negligible impact on public coffers, but payments made to public-sector bargaining units may have massive implications for government spending. See at 18, and n. 7. That is why the dissent’s “analogy,” , at 20–21, is not illustrative at all. We do not doubt that a single public employee’s pay is usually not a matter of public concern. But when the issue is pay for an entire collective-bargaining unit involving millions of dollars, that matter affects statewide budgeting decisions. 29 See Cooper, Bigger Share of State Cash for Medicaid, N. Y. Times, Dec. 14, 2011. 30 The Court of Appeals held—and we agree—that the claims of the petitioners who work, not in the Rehabilitation Program, but in a different but related program, the “Disabilities Program,” are not ripe. This latter program is similar in its basic structure to the Rehabilitation Program, see App. to Pet. for Cert. 14a, but the Disabilities Program personal assistants have not yet unionized. The Disabilities Program petitioners claim that under Illinois Executive Order No. 2009–15, they face imminent unionization and, along with it, compulsory dues payments. Executive Order No. 2009–15, they note, is “almost identical to EO 2003–08, except that it targets providers in the Disabilities Program.” Brief for Petitioners 10.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus HARRIS et al. v. QUINN, GOVERNOR OF ILLINOIS, et al. certiorari to the united states court of appeals for the seventh circuit No. 11–681. Argued January 21, 2014—Decided June 30, 2014 Illinois’ Home Services Program (Rehabilitation Program) allows Medicaid recipients who would normally need institutional care to hire a “personal assistant” (PA) to provide homecare services. Under State law, the homecare recipients (designated “customers”) and the State both play some role in the employment relationship with the PAs. Customers control most aspects of the employment relationship, including the hiring, firing, training, supervising, and disciplining of PAs; they also define the PA’s duties by proposing a “Service Plan.” Other than compensating PAs, the State’s involvement in employment matters is minimal. Its employer status was created by executive order, and later codified by the legislature, solely to permit PAs to join a labor union and engage in collective bargaining under Illinois’ Public Labor Relations Act (PLRA). Pursuant to this scheme, respondent SEIU Healthcare Illinois & Indiana (SEIU–HII) was designated the exclusive union representative for Rehabilitation Program employees. The union entered into collective-bargaining agreements with the State that contained an agency-fee provision, which requires all bargaining unit members who do not wish to join the union to pay the union a fee for the cost of certain activities, including those tied to the collective-bargaining process. A group of Rehabilitation Program PAs brought a class action against SEIU–HII and other respondents in Federal District Court, claiming that the PLRA violated the First Amendment insofar as it authorized the agency-fee provision. The District Court dismissed their claims, and the Seventh Circuit affirmed in relevant part, concluding that the PAs were state employees within the meaning of Abood v. Detroit Bd. of Ed., 431 U.S. 209. Held: The First Amendment prohibits the collection of an agency fee from Rehabilitation Program PAs who do not want to join or support the union. . (a) In upholding the Illinois law’s constitutionality, the Seventh Circuit relied on Abood, which, in turn, relied on Railway Employes v. Hanson, 351 U.S. 225, and Machinists v. Street, 367 U.S. 740. Unlike Abood, those cases involved private-sector collective-bargaining agreements. The Abood Court treated the First Amendment issue as largely settled by Hanson and Street and understood those cases to have upheld agency fees based on the desirability of “labor peace” and the problem of “ ‘free riders[hip].’ ” 431 U. S., 220–222, 224. However, “preventing nonmembers from free-riding on the union’s efforts” is a rationale “generally insufficient to overcome First Amendment objections,” Knox v. Service Employees, 567 U. S. ___, ___, and in this respect, Abood is “something of an anomaly,” 567 U. S., at ___. The Abood Court’s analysis is questionable on several grounds. The First Amendment analysis in Hanson was thin, and Street was not a constitutional decision. And the Court fundamentally misunderstood Hanson’s narrow holding, which upheld the authorization, not imposition, of an agency fee. The Abood Court also failed to appreciate the distinction between core union speech in the public sector and core union speech in the private sector, as well as the conceptual difficulty in public-sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes. Nor does the Abood Court seem to have anticipated the administrative problems that would result in attempting to classify union expenditures as either chargeable or nonchargeable, see, e.g., Lehnert v. Ferris Faculty Assn., 500 U.S. 507, or the practical problems that would arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions. Finally, the Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers. . (b) Because of Abood’s questionable foundations, and because Illinois’ PAs are quite different from full-fledged public employees, this Court refuses to extend Abood to the situation here. . (1) PAs are much different from public employees. Unlike full-fledged public employees, PAs are almost entirely answerable to the customers and not to the State, do not enjoy most of the rights and benefits that inure to state employees, and are not indemnified by the State for claims against them arising from actions taken during the course of their employment. Even the scope of collective bargaining on their behalf is sharply limited. . (2) Abood’s rationale is based on the assumption that the union possesses the full scope of powers and duties generally available under American labor law. Even the best argument for Abood’s anomalous approach is a poor fit here. What justifies the agency fee in the Abood context is the fact that the State compels the union to promote and protect the interests of nonmembers in “negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances.” Lehnert, supra, at 556. That rationale has little application here, where Illinois law requires that all PAs receive the same rate of pay and the union has no authority with respect to a PA’s grievances against a customer. . (3) Extending Abood’s boundaries to encompass partial public employees would invite problems. State regulations and benefits affecting such employees exist along a continuum, and it is unclear at what point, short of full-fledged public employment, Abood should apply. Under respondents’ view, a host of workers who currently receive payments from a government entity for some sort of service would become candidates for inclusion within Abood’s reach, and it would be hard to see where to draw the line. . (c) Because Abood does not control here, generally applicable First Amendment standards apply. Thus, the agency-fee provision here must serve a “ ‘compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.’ ” Knox, supra, at ___. None of the interests that respondents contend are furthered by the agency-fee provision is sufficient. . (1) Their claim that the agency-fee provision promotes “labor peace” misses the point. Petitioners do not contend that they have a First Amendment right to form a rival union or that SEIU–HII has no authority to serve as the exclusive bargaining representative. This, along with examples from some federal agencies and many state laws, demonstrates that a union’s status as exclusive bargaining agent and the right to collect an agency fee from nonmembers are not inextricably linked. Features of the Illinois scheme—e.g., PAs do not work together in a common state facility and the union’s role is very restricted—further undermine the “labor peace” argument. . (2) Respondents also argue that the agency-fee provision promotes the welfare of PAs, thereby contributing to the Rehabilitation Program’s success. Even assuming that SEIU–HII has been an effective advocate, the agency-fee provision cannot be sustained unless the union could not adequately advocate without the receipt of nonmember agency fees. No such showing has been made. . (d) Respondents’ additional arguments for sustaining the Illinois scheme are unconvincing. First, they urge the application of a balancing test derived from Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563. This Court has never viewed Abood and its progeny as based on Pickering balancing. And even assuming that Pickering applies, that case’s balancing test clearly tips in favor of the objecting employees’ First Amendment interests. Second, respondents err in contending that a refusal to extend Abood here will call into question this Court’s decisions in Keller v. State Bar of Cal., 496 U.S. 1, and Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, for those decisions fit comfortably within the framework applied here. . 656 F.3d 692, reversed in part, affirmed in part, and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Kagan, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.

Section 6 of the Illinois Public Labor Relations Act (PLRA) authorizes state employees to join labor unions and to bargain collectively on the terms and conditions of employment. The statute establishes an employer-employee relationship between the person receiving the care and the person providing it. The customer has complete discretion in which Personal Assistant he/she wishes to hire. A customer also controls the contents of the document, the Service Plan, that lists the services that the customer will receive. The Illinois Rehabilitation Program allows personal assistants employed by customers in their homes to voice concerns about the program, its program, and the conditions of their employment under the program. Illinois law also requires personal assistants to pay a fee to a union that they do not wish to support. Three of the petitioners are personal assistants under the Rehabilitation program. They filed a putative class action in Federal District Court, seeking an injunction against enforcement of the fair-share provision and a declaration that the Illinois PLRA violates the First Amendment insofar as it requires such personal assistants, in addition to paying fees to the union, to pay for activities connected with proposing ethical codes and disciplining personal assistants. The District Court dismissed the claims with prejudice. The Court of Appeals affirmed in relevant part, concluding that the case was controlled by Abood v. Detroit Bd. of Ed. 431 U. S. 209 (1977), which held that state employees who choose not to join a public-sector union may nevertheless be compelled to pay an agency fee to support union work that is related to the collective-bargaining process. Held: The First Amendment does not permit a State to compel personal care providers to subsidize speech on matters of public concern by a union not wishing to join or support the union. . (a) Abood, supra, was decided solely to sanction the collection of agency fees from personal assistants who do not want to join the labor union, and not to sanction employment of a personal assistant whose performance is not satisfactory. This decision rests in no way on state-law labels, and is entirely consistent with this Court's decision in Keller v. State Bar of Cal. 1 (1990) and Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217 (2000), which upheld the constitutionality of a state-imposed mandatory student activities fee that was used in part to support a wide array of student groups that engaged in expressive activity. Just as the State denies personal assistants most of the rights and benefits enjoyed by full-fledged state workers, the State does not assume responsibility for actions taken by personal assistants during the course of their employment. In order to pass exacting scrutiny, more must be shown. Here, the agency-fee provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those assistants who chose to join. No such showing has been made. Moreover, the speech compelled in this case does much more than propose a commercial transaction. Accordingly, it is arguable that the United Foods standard is toopermissive, and hence Abood cannot be extended to the new situation. Pp. 456 U. s. 692. (b) The argument that Abood is based on an unsupported empirical assumption that the principle of exclusive representation in the public sector is dependent on a union or agency shop is unwarranted, since Abood failed to appreciate the conceptual difficulty of distinguishing between union expenditures that are made for collective bargaining and nonmembers pur-poses, and non-public expenditures. It is not at all perverse to recognize that a State may exercise more control over its employees than it may over those who are not fully-fledged employees or are privately employed. Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public- sector union expenditures as either "chargeable" or nonchargeable. See, e.g., Belvidere v. Illinois State Labor Relations Bd., 181 Ill. 2d 191, 201, 692 N. E.2d 295, 301, where Abood was based. And even if the agency fee provision in the collective bargaining agreement were tied to the status as exclusive bargaining agents, features of that agreement would still undermine the argument that the fee plays an important role in maintaining labor peace. Furthermore, the fact that the State compels the union to promote and protect the interests of nonmembers is not sufficient to justify the fee, since the union has the duty to provide equal and effective representation for nonmembers in grievance proceedings. As for the adjustment of grievances, the union's authority and responsibilities are narrow, since it has no authority with respect to any grievances that personal assistants may have with a customer, and since the customer has virtually complete control over the work of the personal assistant. Even if every student were entitled to a partial exemption

2013_12-729

https://www.oyez.org/cases/2013/12-729

. A participant in an employee benefit plan covered by the Employee Retirement Income Security Act of 1974 (ERISA), 88Stat. 829, as amended, 29 U. S. C. §1001 et seq., may bring a civil action under §502(a)(1)(B) to re- cover benefits due under the terms of the plan. 29 U. S. C. §1132(a)(1)(B). Courts have generally required participants to exhaust the plan’s administrative remedies before filing suit to recover benefits. ERISA does not, however, specify a statute of limitations for filing suit under §502(a)(1)(B). Filling that gap, the plan at issue here requires participants to bring suit within three years after “proof of loss” is due. Because proof of loss is due before a plan’s administrative process can be completed, the ad- ministrative exhaustion requirement will, in practice, shorten the contractual limitations period. The question presented is whether the contractual limitations provision is enforceable. We hold that it is. I In 2005, petitioner Julie Heimeshoff began to report chronic pain and fatigue that interfered with her duties as a senior public relations manager for Wal-Mart Stores, Inc. Her physician later diagnosed her with lupus and fibromyalgia. Heimeshoff stopped working on June 8. On August 22, 2005, Heimeshoff filed a claim for long-term disability benefits with Hartford Life & Accident Insurance Co., the administrator of Wal-Mart’s Group Long Term Disability Plan (Plan). Her claim form, supported by a statement from her rheumatologist, listed her symptoms as “ ‘extreme fatigue, significant pain, and difficulty in concentration.’ ” [ 1 ] App. to Pet. for Cert. 7. In November 2005, Hartford notified Heimeshoff that it could not determine whether she was disabled because her rheumatologist had never responded to Hartford’s request for additional information. Hartford denied the claim the following month for failure to provide satisfactory proof of loss. Hartford instructed Heimeshoff that it would con- sider an appeal filed within 180 days, but later informed her that it would reopen her claim, without the need for an appeal, if her rheumatologist provided the requested information. In July 2006, another physician evaluated Heimeshoff and concluded that she was disabled. Heimeshoff sub- mitted that evaluation and additional medical evidence in October 2006. Hartford then retained a physician to review Heimeshoff’s records and speak with her rheumatologist. That physician issued a report in November 2006 concluding that Heimeshoff was able to perform the activities required by her sedentary occupation. Hartford denied Heimeshoff’s claim later that November. In May 2007, Heimeshoff requested an extension of the Plan’s appeal deadline until September 30, 2007, in order to provide additional evidence. Hartford granted the extension. On September 26, 2007, Heimeshoff submitted her appeal along with additional cardiopulmonary and neuropsychological evaluations. After two additional physicians retained by Hartford reviewed the claim, Hartford issued its final denial on November 26, 2007. On November 18, 2010, almost three years later (but more than three years after proof of loss was due), Heimeshoff filed suit in District Court seeking review of her denied claim pursuant to ERISA §502(a)(1)(B). Hartford and Wal-Mart moved to dismiss on the ground that Heimeshoff’s complaint was barred by the Plan’s limitations provision, which stated: “Legal action cannot be taken against The Hartford . . . [more than] 3 years after the time written proof of loss is required to be furnished according to the terms of the policy.” Id., at 10. The District Court granted the motion to dismiss. Recognizing that ERISA does not provide a statute of limitations for actions under §502(a)(1)(B), the court explained that the limitations period provided by the most nearly analogous state statute applies. See North Star Steel Co. v. Thomas, 515 U. S. 29 –34 (1995). Under Connecticut law, the Plan was permitted to specify a limitations period expiring “[not] less than one year from the time when the loss insured against occurs.” [ 2 ] Conn. Gen. Stat. §38a–290 (2012); see App. to Pet. for Cert. 13. The court held that, under Circuit precedent, a 3-year limitations period set to begin when proof of loss is due is enforceable, and Heimeshoff’s claim was therefore untimely. [ 3 ] Id., at 13, 15 (citing Burke v. PriceWaterHouseCoopers LLP Long Term Disability Plan, 572 F. 3d 76, 79–81 (CA2 2009) (per curiam)). On appeal, the Second Circuit affirmed. 496 Fed. Appx. 129 (2012). Applying the precedent relied on by the District Court, the Court of Appeals concluded that it did not offend ERISA for the limitations period to commence before the plaintiff could file suit under §502(a)(1)(B). Because the policy language unambiguously provided that the 3-year limitations period ran from the time that proof of loss was due under the Plan, and because Heimeshoff filed her claim more than three years after that date, her action was time barred. We granted certiorari to resolve a split among the Courts of Appeals on the enforceability of this common contractual limitations provision. 569 U. S. ___ (2013). Compare, e.g., Burke, supra, at 79–81 (plan provision requiring suit within three years after proof-of-loss deadline is enforceable); and Rice v. Jefferson Pilot Financial Ins. Co., 578 F. 3d 450, 455–456 (CA6 2009) (same), with White v. Sun Life Assurance Co. of Canada, 488 F. 3d 240, 245–248 (CA4 2007) (not enforceable); and Price v. Provident Life & Acc. Ins. Co., 2 F. 3d 986, 988 (CA9 1993) (same). We now affirm. II Statutes of limitations establish the period of time within which a claimant must bring an action. As a general matter, a statute of limitations begins to run when the cause of action “ ‘accrues’ ”—that is, when “the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192, 201 (1997) . ERISA and its regulations require plans to provide certain presuit procedures for reviewing claims after par- ticipants submit proof of loss (internal review). See 29 U. S. C. §1133; 29 CFR §2560.503–1 (2012). The courts of appeals have uniformly required that participants exhaust internal review before bringing a claim for judicial review under §502(a)(1)(B). See LaRue v. DeWolff, Boberg & Associates, Inc., 552 U. S. 248 –259 (2008) (Roberts, C. J., concurring in part and concurring in judgment). A participant’s cause of action under ERISA accordingly does not accrue until the plan issues a final denial. ERISA §502(a)(1)(B) does not specify a statute of limitations. Instead, the parties in this case have agreed by contract to a 3-year limitations period. The contract specifies that this period begins to run at the time proof of loss is due. Because proof of loss is due before a participant can exhaust internal review, Heimeshoff contends that this limitations provision runs afoul of the general rule that statutes of limitations commence upon accrual of the cause of action. For the reasons that follow, we reject that argument. Absent a controlling statute to the contrary, a participant and a plan may agree by contract to a particular limitations period, even one that starts to run before the cause of action accrues, as long as the period is reasonable. A Recognizing that Congress generally sets statutory limitations periods to begin when their associated causes of action accrue, this Court has often construed statutes of limitations to commence when the plaintiff is permitted to file suit. See, e.g., Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U. S. 409, 418 (2005) (resolving an ambiguity in light of “the ‘standard rule that the limitations period commences when the plaintiff has a complete and present cause of action’ ” (quoting Bay Area Laundry, supra, at 201)); Rawlings v. Ray, 312 U. S. 96, 98 (1941) . At the same time, we have recognized that statutes of limitations do not inexorably commence upon accrual. See Reiter v. Cooper, 507 U. S. 258, 267 (1993) (noting the possibility that a cause of action may “accru[e] at one time for the purpose of calculating when the statute of limitations begins to run, but at another time for the purpose of bringing suit”); see also Dodd v. United States, 545 U. S. 353, 358 (2005) (the statute of limitations in the federal habeas statute runs from “ ‘the date on which the right asserted was initially recognized by the Supreme Court’ ” even if the right has not yet been “ ‘made retroactively applicable to cases on collateral review’ ”); McMahon v. United States, 342 U. S. 25 –27 (1951) (the limitations period in the Suits in Admiralty Act runs from the date of injury rather than when plaintiffs may sue). None of those decisions, however, addresses the critical aspect of this case: the parties have agreed by contract to commence the limitations period at a particular time. For that reason, we find more appropriate guidance in precedent confronting whether to enforce the terms of a contractual limitations provision. Those cases provide a well-established framework suitable for resolving the ques- tion in this case: “[I]n the absence of a controlling statute to the con-trary, a provision in a contract may validly limit, between the parties, the time for bringing an action on such contract to a period less than that prescribed in the general statute of limitations, provided that the shorter period itself shall be a reasonable period.” Order of United Commercial Travelers of America v. Wolfe, 331 U. S. 586, 608 (1947) . We have recognized that some statutes of limitations do not permit parties to choose a shorter period by contract. See, e.g., Louisiana & Western R. Co. v. Gardiner, 273 U. S. 280, 284 (1927) (contractual provision requiring suit against common carrier within two years and one day after delivery was invalid under a federal statute “declar[ing] unlawful any limitation shorter than two years from the time notice is given of the disallowance of the claim”). The rule set forth in Wolfe recognizes, however, that other statutes of limitations provide only a default rule that permits parties to choose a shorter limitations period. See Riddlesbarger v. Hartford Ins. Co., 7 Wall. 386, 390 (1869) (finding “nothing in th[e] language or object [of statutes of limitations] which inhibits parties from stipulating for a shorter period within which to assert their respective claims”); see also Missouri, K. & T. R. Co. v. Harriman, 227 U. S. 657 –673 (1913) (citing examples). If parties are permitted to contract around a default statute of limitations, it follows that the same rule applies where the statute creating the cause of action is silent regarding a limitations period. The Wolfe rule necessarily allows parties to agree not only to the length of a limitations period but also to its commencement. The duration of a limitations period can be measured only by reference to its start date. Each is therefore an integral part of the limitations provision, and there is no basis for categorically preventing parties from agreeing on one aspect but not the other. See Electrical Workers v. Robbins & Myers, Inc., 429 U. S. 229, 234 (1976) (noting that “the parties could conceivably have agreed to a contract” specifying the “ ‘occurrence’ ” that commenced the statutory limitations period). B The principle that contractual limitations provisions ordinarily should be enforced as written is especially appropriate when enforcing an ERISA plan. “The plan, in short, is at the center of ERISA.” US Airways, Inc. v. McCutchen, 569 U. S. ___, ___ (2013) (slip op., at 11). “[E]mployers have large leeway to design disability and other welfare plans as they see fit.” Black & Decker Dis- ability Plan v. Nord, 538 U. S. 822, 833 (2003) . And once a plan is established, the administrator’s duty is to see that the plan is “maintained pursuant to [that] written instrument.” 29 U. S. C. §1102(a)(1). This focus on the written terms of the plan is the linchpin of “a system that is [not] so complex that administrative costs, or litigation expenses, unduly discourage employers from offering [ERISA] plans in the first place.” Varity Corp. v. Howe, 516 U. S. 489, 497 (1996) . Heimeshoff’s cause of action for benefits is likewise bound up with the written instrument. ERISA §502(a)(1)(B) authorizes a plan participant to bring suit “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U. S. C. §1132(a)(1)(B) (emphasis added). That “statutory language speaks of ‘enforc[ing]’ the ‘terms of the plan,’ not of changing them.” CIGNA Corp. v. Amara, 563 U. S. ___, ___ (2011) (slip op., at 13). For that reason, we have recognized the particular importance of enforcing plan terms as written in §502(a)(1)(B) claims. See id., at ___ (slip op., at 13–14); Conkright v. Frommert, 559 U. S. 506 –513 (2010); Kennedy v. Plan Administrator for DuPont Sav. and Investment Plan, 555 U. S. 285 –301 (2009). Because the rights and duties at issue in this case are no less “built around reliance on the face of written plan documents,” Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73, 83 (1995) , we will not presume from statu- tory silence that Congress intended a different approach here. III We must give effect to the Plan’s limitations provision unless we determine either that the period is unreason- ably short, or that a “controlling statute” prevents the limitations provision from taking effect. Wolfe, 331 U. S., at 608. Neither condition is met here. A Neither Heimeshoff nor the United States claims that the Plan’s 3-year limitations provision is unreasonably short on its face. And with good reason: the United States acknowledges that the regulations governing internal review mean for “mainstream” claims to be resolved in about one year, Tr. of Oral Arg. 22, leaving the participant with two years to file suit. [ 4 ] Even in this case, where the administrative review process required more time than usual, Heimeshoff was left with approximately one year in which to file suit. Heimeshoff does not dispute that a hypothetical 1-year limitations period commencing at the conclusion of internal review would be reasonable. Id., at 4. We cannot fault a limitations provision that would leave the same amount of time in a case with an unusually long internal review process while providing for a significantly longer period in most cases. Heimeshoff’s reliance on Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355 (1977) , is therefore misplaced. There, we declined to enforce a State’s 1-year statute of limitations as applied to Title VII employment discrimination actions where the limitations period commenced before accrual. We concluded that “[i]t would hardly be reasonable” to suppose that Congress intended to enforce state statutes of limitations as short as 12 months where the Equal Employment Opportunity Commission faced a backlog of 18 to 24 months, leaving claimants with little chance of bringing a claim not barred by the State’s statute of limitations. Id., at 369–371. In the absence of any evidence that there are similar obstacles to bringing a timely §502(a)(1)(B) claim, we conclude that the Plan’s limitations provision is reasonable. B Heimeshoff and the United States contend that even if the Plan’s limitations provision is reasonable, ERISA is a “controlling statute to the contrary.” Wolfe, supra, at 608. But they do not contend that ERISA’s statute of limitations for claims of breach of fiduciary duty controls this action to recover benefits. See 29 U. S. C. §1113. Nor do they claim that ERISA’s text or regulations contradict the Plan’s limitations provision. Rather, they assert that the limitations provision will “undermine” ERISA’s two-tiered remedial scheme. Brief for Petitioner 39; Brief for United States as Amicus Curiae 19. We cannot agree. 1 The first tier of ERISA’s remedial scheme is the internal review process required for all ERISA disability-benefit plans. 29 CFR §2560.503–1. After the participant files a claim for disability benefits, the plan has 45 days to make an “adverse benefit determination.” §2560.503–1(f)(3). Two 30-day extensions are available for “matters beyond the control of the plan,” giving the plan a total of up to 105 days to make that determination. Ibid. The plan’s time for making a benefit determination may be tolled “due to a claimant’s failure to submit information necessary to decide a claim.” §2560.503–1(f)(4). Following denial, the plan must provide the participant with “at least 180 days . . . within which to appeal the determination.” §§2560.503–1(h)(3)(i), (h)(4). The plan has 45 days to resolve that appeal, with one 45-day extension available for “special circumstances (such as the need to hold a hearing).” §§2560.503–1(i)(1)(i), (i)(3)(i). The plan’s time for resolving an appeal can be tolled again if the participant fails to submit necessary information. §2560.503–1(i)(4). In the ordinary course, the regulations contemplate an internal review process lasting about one year. Tr. of Oral Arg. 22. If the plan fails to meet its own deadlines under these procedures, the participant “shall be deemed to have exhausted the administrative remedies.” §2560.503–1(l). Upon exhaustion of the internal review process, the participant is entitled to proceed immediately to judicial review, the second tier of ERISA’s remedial scheme. 2 Heimeshoff and the United States first claim that the Plan’s limitations provision will undermine the foregoing internal review process. They contend that participants will shortchange their own rights during that process in order to have more time in which to seek judicial review. Their premise—that participants will sacrifice the benefits of internal review to preserve additional time for filing suit—is highly dubious in light of the consequences of that course of action. First, to the extent participants fail to develop evidence during internal review, they risk forfeiting the use of that evidence in district court. The Courts of Appeals have generally limited the record for judicial review to the administrative record compiled during internal review. See, e.g., Foster v. PPG Industries, Inc., 693 F. 3d 1226, 1231 (CA10 2012); Fleisher v. Standard Ins. Co., 679 F. 3d 116, 121 (CA3 2012); McCartha v. National City Corp., 419 F. 3d 437, 441 (CA6 2005). Second, participants are not likely to value judicial review of plan determinations over internal review. Many plans (including this Plan) vest discretion over benefits determinations in plan administrators. See Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101 –112 (1989) (permitting the vesting of discretion); see also App. in No. 12–651–cv (CA2), p. 34. Courts ordinarily review determinations by such plans only for abuse of discretion. Metropolitan Life Ins. Co. v. Glenn, 554 U. S. 105 –116 (2008). In short, participants have much to lose and little to gain by giving up the full measure of internal review in favor of marginal extra time to seek judicial review. 3 Heimeshoff and the United States next warn that it will endanger judicial review to allow plans to set limitations periods that begin to run before internal review is complete. The United States suggests that administrators may attempt to prevent judicial review by delaying the resolution of claims in bad faith. Brief for United States as Amicus Curiae 19; see also White, 488 F. 3d, at 247–248. But administrators are required by the regulations governing the internal review process to take prompt action, see supra, at 10–11, and the penalty for failure to meet those deadlines is immediate access to judicial review for the participant. 29 CFR §2560.503–1(l). In addition, that sort of dilatory behavior may implicate one of the traditional defenses to a statute of limitations. See infra, at 14–15. The United States suggests that even good-faith administration of internal review will significantly diminish the availability of judicial review if this limitations provision is enforced. Forty years of ERISA administration sug- gest otherwise. The limitations provision at issue is quite common; the vast majority of States require certain insurance policies to include 3-year limitations periods that run from the date proof of loss is due. [ 5 ] But there is no significant evidence that limitations provisions like the one here have similarly thwarted judicial review. As explained above, see supra, at 10–11, ERISA regulations structure internal review to proceed in an expeditious manner. It stands to reason that the cases in which internal review leaves participants with less than one year to file suit are rare. Heimeshoff identifies only a handful of cases in which §502(a)(1)(B) plaintiffs are actually time barred as a result of this 3-year limitations provision. See Abena v. Metropolitan Life Ins. Co., 544 F. 3d 880 (CA7 2008); Touqan v. Metropolitan Life Ins. Co., 2012 WL 3465493 (ED Mich., Aug. 14, 2012); Smith v. Unum Provident, 2012 WL 1436458 (WD Ky., Apr. 24, 2012); Fry v. Hartford Ins. Co., 2011 WL 1672474 (WDNY, May 3, 2011); Rotondi v. Hartford Life & Acc. Group, 2010 WL 3720830 (SDNY, Sept. 22, 2010). Those cases suggest that this barrier falls on participants who have not diligently pursued their rights. See Abena, supra, at 884 (by his own admission, there was “no reason” plaintiff could not have filed suit during the remaining seven months of limitations period); Smith, supra, at *2 (plaintiff filed suit four years after the limitations period expired, and six years after final de- nial); Rotondi, supra, at *8 (“Application of the . . . limitations period works no unfairness here”); see also Rice, 578 F. 3d, at 457 (the participant “has not established that he has been diligently pursuing his rights” and “has given no reason for his late filing”); Burke, 572 F. 3d, at 81 (following exhaustion, “two years and five months of the limitations period remained”); Salerno v. Prudential Ins. Co. of America, 2009 WL 2412732, *6 (NDNY, Aug. 3, 2009) (“Plaintiff’s proof of loss was untimely by over ten years”). The evidence that this 3-year limitations provision harms diligent participants is far too insubstantial to set aside the plain terms of the contract. Moreover, even in the rare cases where internal review prevents participants from bringing §502(a)(1)(B) actions within the contractual period, courts are well equipped to apply traditional doctrines that may nevertheless allow participants to proceed. If the administrator’s conduct causes a participant to miss the deadline for judicial review, waiver or estoppel may prevent the administrator from invoking the limitations provision as a defense. See, e.g., Thompson v. Phenix Ins. Co., 136 U. S. 287 –299 (1890); LaMantia v. Voluntary Plan Adm’rs, Inc., 401 F. 3d 1114, 1119 (CA9 2005). To the extent the participant has diligently pursued both internal review and judicial review but was prevented from filing suit by extraordinary circumstances, equitable tolling may apply. Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95 (1990) (limitations defenses “in lawsuits between private litigants are customarily subject to ‘equitable tolling’ ”). [ 6 ] Finally, in addition to those traditional remedies, plans that offer appeals or dispute resolution beyond what is contemplated in the internal review regulations must agree to toll the limitations provision during that time. 29 CFR §2560.503–1(c)(3)(ii). Thus, we are not persuaded that the Plan’s limitations provision is inconsistent with ERISA. C Two additional arguments warrant mention. First, Heimeshoff argues—for the first time in this litigation—that the limitations period should be tolled as a matter of course during internal review. By effectively delaying the commencement of the limitations period until the conclusion of internal review, however, this approach reconstitutes the contractual revision we declined to make. As we explained, the parties’ agreement should be enforced unless the limitations period is unreasonably short or foreclosed by ERISA. The limitations period here is neither. See supra, at 9–10, 11–14, and this page. Nor do the ERISA regulations require tolling during internal review. A plan must agree to toll the limitations provision only in one particular circumstance: when a plan offers voluntary internal appeals beyond what is permitted by regulation. §2560.503–1(c)(3)(ii). Even then, the limitations period is tolled only during that specific portion of internal review. This limited tolling requirement would be superfluous if the regulations contemplated tolling throughout the process. Finally, relying on our decision in Hardin v. Straub, 490 U. S. 536 (1989) , Heimeshoff contends that we must inquire whether state law would toll the limitations period throughout the exhaustion process. In Hardin, we interpreted 42 U. S. C. §1983 to borrow a State’s statutory limitations period. We recognized that when a federal statute is deemed to borrow a State’s limitations period, the State’s tolling rules are ordinarily borrowed as well because “ ‘[i]n virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling . . . .’ ” 490 U. S., at 539 (quoting Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 464 (1975) ); see also Board of Regents of Univ. of State of N. Y. v. Tomanio, 446 U. S. 478, 484 (1980) (in §1983 actions “a state statute of limitations and the coordinate tolling rules” are “binding rules of law”). But here, unlike in Hardin, the parties have adopted a limitations period by contract. Under these circumstances, where there is no need to borrow a state statute of limitations there is no need to borrow concomitant state tolling rules. IV We hold that the Plan’s limitations provision is enforceable. The judgment is, accordingly, affirmed. It is so ordered. Notes 1 The insurance policy provides: “ ‘Written proof of loss must be sent to The Hartford within 90 days after the start of the period for which The Hartford owes payment. After that, The Hartford may require further written proof that you are still Disabled.’ ” App. to Pet. for Cert. 10. 2 The parties do not dispute that Connecticut provides the relevant state law governing the limitations period in this case. 3 Heimeshoff also argued before the District Court that even if the Plan’s limitations provision were enforceable, her suit was still timely because Hartford had granted her request for an extension until September 30, 2007. Even crediting the contention that proof of loss was not due until that date, the court held that the Plan’s limitations provision barred her from bringing legal action any later than September 30, 2010. Heimeshoff did not file suit until November 18, 2010. 4 Heimeshoff, drawing on a study by the American Council of Life Insurers of recent §502(a)(1)(B) cases where timeliness was at issue, states that exhaustion can take 15 to 16 months in a typical case. Reply Brief 17–18, n. 3 (citing Brief for American Council of Life Insurers et al. as Amici Curiae 29). In our view, that still leaves ample time for filing suit. 5 See Ala. Code §§27–19–14, 27–20–5(7) (2007); Alaska Stat. §21.54.030(7) (2012); Ark. Code Ann. §§23–85–116, 23–86–102(c)(7) (2004); Cal. Ins. Code Ann. §10350.11 (West 2013); Colo. Rev. Stat. Ann. §10–16–202(12) (2013); Conn. Gen. Stat. §38a–483(a)(11) (2012); Del. Code Ann., Tit. 18, §§3315, 3541(7) (1999); Ga. Code Ann. §33–29–3(b)(11) (2013); Haw. Rev. Stat. §431:10A–105(11) (Cum. Supp. 2012); Idaho Code §§41–2115, 41–2207(7) (Lexis 2010); Ill. Comp. Stat., ch. 215, §5/357.12 (West 2012); Ind. Code §27–8–5–3(a)(11) (2004); Iowa Code §514A.3(1)(k) (2008); Ky. Rev. Stat. Ann. §§304.17–150, 304.18–070(7) (West 2012); Me. Rev. Stat. Ann., Tit. 24–A, §2715 (2000); Mass. Gen. Laws, ch. 175, §108(3)(a)(11) (West 2011); Mich. Comp. Laws §500.3422 (2002); Minn. Stat. §62A.04(2)(11) (2012); Miss. Code Ann. §83–9–5(1)(k) (2011); Mo. Rev. Stat. §376.777(1)(11) (2000); Mont. Code Ann. §33–22–602(7) (2013); Neb. Rev. Stat. §44–710.03(11) (2010);Nev. Rev. Stat. §§689A.150, 689B.080(9) (2011); N. H. Rev. Stat.Ann. §415:6(I)(11) (West Supp. 2012); N. J. Stat. Ann. §17B:26–14 (West 2006); N. M. Stat. Ann. §59A–22–14 (2013); N. Y. Ins. Law §3216(d)(1)(K) (West Supp. 2013); N. C. Gen. Stat. Ann. §58–51–15(a)(11) (Lexis 2011); N. D. Cent. Code Ann. §26.1–36–05(14) (Lexis 2010); Ohio Rev. Code Ann. §3923.04(K) (Lexis 2010); Okla. Stat., Tit. 36, §4405(A)(11) (West 2011); Ore. Rev. Stat. §743.441 (2011); 40 Pa. Cons. Stat. §753(A)(11) (1999); R. I. Gen. Laws §27–18–3(a)(11) (Lexis 2008); S. D. Codified Laws §58–18–27 (2004); Tenn. Code Ann. §56–26–108(11) (2008); Tex. Ins. Code Ann. §1201.217 (West Supp. 2012); Vt. Stat. Ann., Tit. 8, §4065(11) (2009); Va. Code Ann. §38.2–3540 (Lexis 2007); Wash. Rev. Code §48.20.142 (2012); W. Va. Code Ann. §33–15–4(k) (Lexis 2011); Wyo. Stat. Ann. §§26–18–115, 26–19–107(a)(vii) (2013). 6 Whether the Court of Appeals properly declined to apply those doctrines in this case is not before us. 569 U. S. ___, ___ (2013); Pet. for Cert. i.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus HEIMESHOFF v. HARTFORD LIFE & ACCIDENT INSURANCE CO. et al. certiorari to the united states court of appeals for the second circuit No. 12–729. Argued October 15, 2013—Decided December 16, 2013 Respondent Hartford Life & Accident Insurance Co. (Hartford) is the administrator of Wal-Mart Stores, Inc.’s (Wal-Mart) Group Long Term Disability Plan (Plan), an employee benefit plan covered by the Employee Retirement Income Security Act of 1974 (ERISA). The Plan’s insurance policy requires any suit to recover benefits pursuant to the judicial review provision in ERISA §502(a)(1)(B), 29 U. S. C. §1132(a)(1)(B), to be filed within three years after “proof of loss” is due. Petitioner Heimeshoff filed a claim for long-term disability benefits with Hartford. After petitioner exhausted the mandatory administrative review process, Hartford issued its final denial. Almost three years after that final denial but more than three years after proof of loss was due, Heimeshoff filed a claim for judicial review pursuant to ERISA §502(a)(1)(B). Hartford and Wal-Mart moved to dismiss on the ground that the claim was untimely. The District Court granted the motion, recognizing that while ERISA does not provide a statute of limitations, the contractual 3-year limitations period was enforceable under applicable State law and Circuit precedent. The Second Circuit affirmed. Held: The Plan’s limitations provision is enforceable. . (a) The courts of appeals require participants in an employee benefit plan covered by ERISA to exhaust the plan’s administrative remedies before filing suit to recover benefits. A plan participant’s cause of action under ERISA §502(a)(1)(B) therefore does not accrue until the plan issues a final denial. But it does not follow that a plan and its participants cannot agree to commence the limitations period before that time. . (1) The rule set forth in Order of United Commercial Travelers of America v. Wolfe, 331 U.S. 586, 608, provides that a contractual limitations provision is enforceable so long as the limitations period is of reasonable length and there is no controlling statute to the contrary. That is the appropriate framework for determining the enforceability of the Plan’s limitations provision. The Wolfe approach necessarily allows parties to agree both to the length of a limitations period and to its commencement. . (2) The principle that contractual limitations provisions should ordinarily be enforced as written is especially appropriate in the context of an ERISA plan. Heimeshoff’s cause of action is bound up with the written terms of the Plan, and ERISA authorizes a participant to bring suit “to enforce his rights under the terms of the plan.” §1132(a)(1)(B). This Court has thus recognized the particular importance of enforcing plan terms as written in §502(a)(1)(B) claims, see, e.g., CIGNA Corp. v. Amara, 563 U. S. ___, ___, and will not presume from statutory silence that Congress intended a different approach here. . (b) Unless the limitations period is unreasonably short or there is a “controlling statute to the contrary,” Wolfe, supra, at 608, the Plan’s limitations provision must be given effect. . (1) The Plan’s period is not unreasonably short. Applicable regulations mean for mainstream claims to be resolved by plans in about one year. Here, the Plan’s administrative review process (“internal review”) required more time than usual but still left Heimeshoff with approximately one year to file suit. Her reliance on Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, in which this Court declined to enforce a 12-month statute of limitations applied to Title VII employment discrimination actions where the Equal Employment Opportunity Commission faced an 18- to 24-month backlog, is unavailing in the absence of any evidence that similar obstacles exist to bringing a timely ERISA §502(a)(1)(B) claim. . (2) This Court rejects the contentions of Heimeshoff and the United States that the limitations provision is unenforceable because it will undermine ERISA’s two-tiered remedial scheme. . (i) Enforcement of the Plan’s limitation provision is unlikely to cause participants to shortchange the internal review process. The record for judicial review generally has been limited to the administrative record, so participants who fail to develop evidence during internal review risk forfeiting the use of that evidence in district court. In addition, many plans vest discretion over benefits determinations in the plan administrator, and courts ordinarily review such determinations only for abuse of discretion. . (ii) It is also unlikely that enforcing limitations periods that begin to run before the internal review process is exhausted will endanger judicial review. To the extent that administrators attempt to prevent judicial review by delaying the resolution of claims in bad faith, the penalty for failure to meet the regulatory deadlines is immediate access to judicial review for the participant. Evidence from forty years of ERISA administration of this common contractual provision suggests that the good-faith administration of internal review will not diminish the availability of judicial review either. Heimeshoff identifies only a handful of cases in which ERISA §502(a)(1)(B) plaintiffs have been time barred as a result of the 3-year limitations provision, and these cases suggest that the bar falls on participants who have not diligently pursued their rights. More- over, courts are well equipped to apply traditional doctrines, such as waiver or estoppel, see, e.g., Thompson v. Phenix Ins. Co., 136 U.S. 287, 298–299, and equitable tolling, see, e.g., Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, that nevertheless may allow participants to proceed. Finally, plans offering appeals or dispute resolution beyond what is contemplated in the internal review regulations must agree to toll the limitations provision during that time. 29 CFR §2560.503–1(c)(3)(ii). . (3) Heimeshoff’s additional arguments are unpersuasive. The limitations period need not be tolled as a matter of course during internal review because that would be inconsistent with the text of the limitations provision, which is enforceable. And federal courts need not inquire whether state law would toll the limitations period during internal review because the limitations period is set by contract, not borrowed from state law. . 496 Fed. Appx. 129, affirmed. Thomas, J., delivered the opinion for a unanimous Court.

Petitioner Heimeshoff (hereafter petitioner) began to report chronic pain and fatigue that interfered with her duties as a senior public relations manager for Wal-Mart Stores, Inc., and stopped working when she was diagnosed with lupus and fibromyalgia. She filed a claim for long-term disability benefits with Hartford Life & Accident Insurance Co., the administrator of the employee benefit plan covered by the Employee Retirement Income Security Act of 1974 (ERISA). Hartford denied the claim for failure to provide satisfactory proof of loss, and Hartford denied her subsequent claim. Petitioner then filed suit in Federal District Court seeking review of her denied claim pursuant to ERISA §502(a)(1)(B), which provides that legal action cannot be taken against Hartford more than 3 years after the time written proof is required to be furnished according to the terms of the policy. The District Court granted the motion to dismiss on the ground that the claim was barred by the ERISA limitations provision. The court explained that the limitations period provided by the most nearly analogous state statute applies. Held: 1. The contractual limitations provision is enforceable. Absent a controlling statute to the contrary, a participant and a plan may agree by contract to a particular limitations period, even one that starts to run before the cause of action accrues, as long as the period is reasonable. See, e.g., Order of United Commercial Travelers of America v. Wolfe, 331 U. S. 586, 608. . 2. The limitations provision does not run afoul of ERISA's general rule that statutes of limitations commence upon accrual of the causes of action. A participant may contract to an ERISA statute of limitations only in one particular circumstance: when a plan offers voluntary internal appeals beyond what is permitted by regulation. Even then, the limitation period is tolled only during that specific portion of internal review. This limited tolling requirement would be superfluous if the regulations contemplated tolling throughout the process. Moreover, since ERISA regulations structure internal review to proceed in an expeditious manner, it stands to reason that the cases in which internal review leaves participants with less than one year to file suit are rare. Furthermore, there is no significant evidence that limitations provisions like the one here have similarly thwarted judicial review.. 3. Nor is the limitations provision inconsistent with ERISA. There is no evidence that ERISA requires tolling during internal review in order to allow participants to bring suit. Occidental Life Ins. Co. of Cal. v. EEOC,, distinguished. In addition, plans that offer appeals or dispute resolution beyond what was contemplated in the internal review regulations must agree to toll the limitation provision during that time. Pp. 467 U.S. 579-565. 4. Nor does ERISA impose a limitation period of 3 years, i.e., 3 1/2 years, that is unreasonably short on its face. To the extent participants fail to develop evidence during such review, they risk forfeiting the use of that evidence in district court. Thus, participants have much to lose and little to gain by giving up the full measure of review in favor of marginal extra time to seek judicial review, and there is therefore no basis for categorically preventing parties from agreeing on one aspect but not the other. While administrators are required by the regulations governing the Internal Review process to take prompt action, they may, in addition, implicate one of the traditional defenses to a limitations provision, and ERISA suggests that even good-faith administration of such review will significantly diminish the availability of judicial review if this limitation provision is enforced. Nor is there any evidence that a limitation provision will endanger judicial review to allow plans to set limitations periods that begin to run after internal review is complete. Finally, the limitations provisions will not frustrate the contractual revision that was declined by Hardin v. Straub,, interpreting 42 U. C. §1983 to borrow a State's limitations period... (a) The parties do not dispute that Connecticut provides the relevant state law governing the limitations section in this case. Because the rights and duties at issue here are no less built around reliance on the face of written plan documents, and since participants are not likely to value judicial review of plan determinations over internal review, participants will shortchange their own rights during that process in order, as a matter of course, to have more time in which to file a suit.. P.. (b) Nor is ERISA a "controlling statute." Even if ERISA is a limiting statute, it is not. The parties have adopted rules of limitations for claims of breach of fiduciary duty that borrow state-wide limitations periods, and where there are no state rules to enforce them. Here, the parties have agreed by contract that the 3-year limitations period begins to run at the time Proof of loss is due. Although the Government regulations

2013_12-1163

https://www.oyez.org/cases/2013/12-1163

. Section 285 of the Patent Act provides: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U. S. C. §285. In Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378 (2005), the United States Court of Appeals for the Federal Circuit interpreted §285 as authorizing fee awards only in two circumstances. It held that “[a] case may be deemed exceptional” under §285 “when there has been some material inappropriate conduct,” or when it is both “brought in subjective bad faith” and “objectively baseless.” Id., at 1381. We granted certiorari to determine whether an appellate court should accord deference to a district court’s determination that litigation is “objectively baseless.” On the basis of our opinion in Octane Fitness, LLC v. ICON Health & Fitness, Inc., ante, p. ___, argued together with this case and also issued today, we hold that an appellate court should review all aspects of a district court’s §285 determination for abuse of discretion. I Allcare Health Management System, Inc., owns U. S. Patent No. 5,301,105 (’105 patent), which covers “utilization review” in “ ‘managed health care systems.’ ”[1] 687 F. 3d 1300, 1306 (CA Fed 2012). Highmark Inc., a health insurance company, sued Allcare seeking a declaratory judgment that the ’105 patent was invalid and unenforceable and that, to the extent it was valid, Highmark’s actions were not infringing it. Allcare counterclaimed for patent infringement. Both parties filed motions for summary judgment, and the District Court entered a final judgment of noninfringement in favor of Highmark. The Federal Circuit affirmed. 329 Fed. Appx. 280 (2009) (per curiam). Highmark then moved for fees under §285. The District Court granted Highmark’s motion. 706 F. Supp. 2d 713 (ND Tex. 2010). The court reasoned that Allcare had engaged in a pattern of “vexatious” and “deceitful” conduct throughout the litigation. Id., at 737. Specifically, it found that Allcare had “pursued this suit as part of a bigger plan to identify companies potentially infringing the ’105 patent under the guise of an informational survey, and then to force those companies to purchase a license of the ’105 patent under threat of litigation.” Id., at 736–737. And it found that Allcare had “maintained infringement claims [against Highmark] well after such claims had been shown by its own experts to be without merit” and had “asserted defenses it and its attorneys knew to be frivolous.” Id., at 737. In a subsequent opinion, the District Court fixed the amount of the award at $4,694,727.40 in attorney’s fees and $209,626.56 in expenses, in addition to $375,400.05 in expert fees. 2010 WL 6432945, *7 (ND Tex., Nov. 5, 2010). The Federal Circuit affirmed in part and reversed in part. 687 F. 3d 1300. It affirmed the District Court’s exceptional-case determination with respect to the allegations that Highmark’s system infringed one claim of the ’105 patent, id., at 1311–1313, but reversed the determination with respect to another claim of the patent, id., at 1313–1315. In reversing the exceptional-case determination as to one claim, the court reviewed it de novo. The court held that because the question whether litigation is “objectively baseless” under Brooks Furniture “ ‘is a question of law based on underlying mixed questions of law and fact,’ ” an objective-baselessness determination is reviewed on appeal “ ‘de novo’ ” and “without deference.” 687 F. 3d, at 1309; see also ibid., n. 1. It then determined, contrary to the judgment of the District Court, that “Allcare’s argument” as to claim construction “was not ‘so unreasonable that no reasonable litigant could believe it would succeed.’ ” Id., at 1315. The court further found that none of Allcare’s conduct warranted an award of fees under the litigation-misconduct prong of Brooks Furniture. 687 F. 3d, at 1315–1319. Judge Mayer dissented in part, disagreeing with the view “that no deference is owed to a district court’s finding that the infringement claims asserted by a litigant at trial were objectively unreasonable.” Id., at 1319. He would have held that “reasonableness is a finding of fact which may be set aside only for clear error.” Ibid. The Federal Circuit denied rehearing en banc, over the dissent of five judges. 701 F. 3d 1351 (2012). The dissenting judges criticized the court’s decision to adopt a de novo standard of review for the “objectively baseless” determination as an impermissible invasion of the province of the district court. Id., at 1357. We granted certiorari, 570 U. S. ___ (2013), and now vacate and remand. II Our opinion in Octane Fitness, LLC v. ICON Health & Fitness, Inc., rejects the Brooks Furniture framework as unduly rigid and inconsistent with the text of §285. It holds, instead, that the word “exceptional” in §285 should be interpreted in accordance with its ordinary meaning. Ante, at 7. An “exceptional” case, it explains, “is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Ante, at 7–8. And it instructs that “[d]istrict courts may determine whether a case is ‘exceptional’ in the case-by-case exercise of their discretion, considering the totality of the circumstances.” Ante, at 8. Our holding in Octane settles this case: Because §285 commits the determination whether a case is “exceptional” to the discretion of the district court, that decision is to be reviewed on appeal for abuse of discretion. Traditionally, decisions on “questions of law” are “reviewable de novo,” decisions on “questions of fact” are “reviewable for clear error,” and decisions on “matters of discretion” are “reviewable for ‘abuse of discretion.’ ” Pierce v. Underwood, 487 U. S. 552, 558 (1988) . For reasons we explain in Octane, the determination whether a case is “exceptional” under §285 is a matter of discretion. And as in our prior cases involving similar determinations, the exceptional-case determination is to be reviewed only for abuse of discretion.[2] See Pierce, 487 U. S., at 559 (determinations whether a litigating position is “substan-tially justified” for purposes of fee-shifting under the Equal Access to Justice Act are to be reviewed for abuse of discretion); Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 405 (1990) (sanctions under Federal Rule of Civil Procedure 11 are to be reviewed for abuse of discretion). As in Pierce, the text of the statute “emphasizes the fact that the determination is for the district court,” which “suggests some deference to the district court upon appeal,” 487 U. S., at 559. As in Pierce, “as a matter of the sound administration of justice,” the district court “is better positioned” to decide whether a case is exceptional, id., at 559–560, because it lives with the case over a prolonged period of time. And as in Pierce, the question is “multifarious and novel,” not susceptible to “useful generalization” of the sort that de novo review provides, and “likely to profit from the experience that an abuse-of-discretion rule will permit to develop,” id., at 562. We therefore hold that an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s §285 determination. Although questions of law may in some cases be relevant to the §285 inquiry, that inquiry generally is, at heart, “rooted in factual determinations,” Cooter, 496 U. S., at 401. * * * The judgment of the United States Court of Appeals for the Federal Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 “ ‘Utilization review’ is the process of determining whether a health insurer should approve a particular treatment for a patient.” 687 F. 3d, at 1306. 2 The abuse-of-discretion standard does not preclude an appellate court’s correction of a district court’s legal or factual error: “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” v. , .

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus HIGHMARK INC. v. ALLCARE HEALTH MANAGEMENT SYSTEM, INC. certiorari to the united states court of appeals for the federal circuit No. 12–1163. Argued February 26, 2014 —Decided April 29, 2014 Petitioner Highmark Inc. moved for fees under the Patent Act’s fee-shifting provision, which authorizes a district court to award attorney’s fees to the prevailing party in “exceptional cases.” 35 U. S. C. §285. The District Court found the case “exceptional” and granted Highmark’s motion. The Federal Circuit, reviewing the District Court’s determination de novo, reversed in part. Held: All aspects of a district court’s exceptional-case determination under §285 should be reviewed for abuse of discretion. Prior to Octane Fitness, LLC v. ICON Health & Fitness, Inc., ante, p. ___, this determination was governed by the framework established by the Federal Circuit in Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378. Octane rejects the Brooks Furniture framework as unduly rigid and holds that district courts may make the exceptional-case determination under §285 in the exercise of their discretion. The holding in Octane settles this case. Decisions on “matters of discretion” are traditionally “reviewable for ‘abuse of discretion,’ ” Pierce v. Underwood, 487 U.S. 552, 558, and this Court previously has held that to be the proper standard of review in cases involving similar determinations, see, e.g., id., at 559; Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405. The exceptional-case determination is based on statutory text that “emphasizes the fact that the determination is for the district court,” Pierce, 487 U. S., at 559; that court “is better positioned” to make the determination, id., at 560; and the determination is “multifarious and novel,” not susceptible to “useful generalization” of the sort that de novo review provides, and “likely to profit from the experience that an abuse-of discretion rule will permit to develop,” id., at 562. . 687 F.3d 1300, vacated and remanded. Sotomayor, J., delivered the opinion for a unanimous Court.

Section 285 of the Patent Act provides that the court in exceptional cases may award reasonable attorney fees to the prevailing party. The Federal Circuit affirmed in part and reversed in part, holding that a case may be deemed exceptional under 35 U.S. C. §285 when there has been some material inappropriate conduct, or when it is both "vexatious" and "objectively baseless." In reversing the determination as to one claim, the court reviewed it de novo. Held: An appellate court should review all aspects of a district court's §285 determination for abuse of discretion. Because §285 commits the determination whether a case is "exceptional" to the discretion of the district court, that decision is to be reviewed on appeal for abuseof discretion. Traditionally, decisions on questions of law, on other matters of fact, and onmatters of discretion are reviewable for clear error. As in Pierce v. Underwood, 487 U. S. 552, 558, the determination here is a matter of discretion, and the question is multifarious and novel, not susceptible touseful generalization, and likely to profit from the experience that an abuse-of-discretion rule will permit to develop. Also, the question whether litigation is objectively baseless under Brooks Furniture Mfg., Inc. v. Dutailier Int'l, Inc., 393 F. 3d 1378, is a question of law based on mixed law and fact. However, in reviewing all aspects, an appellate court may apply the standard of review that is applicable in all such cases. In this case, the Court of Appeals erred in adopting a standard for the review of all aspects. On the basis of its opinion in Octane Fitness, LLC v. ICON Health & Fitness, Inc. ante, p. ___, that opinion is vacated and remanded. See, e.g., at 7. Decedent review of the factual and legal aspects of the determination is inconsistent with the text of §285, and should not preclude the appellate court from reviewing the factual, legal, or factual aspects of such determination. . 701 F.3d 1351 (CA Fed 2012). See also, at 1351. Here, the case is remanded to the Federal Circuit for further proceedings in determining whether a particular treatment of a patient should be treated under a standard such as that of a judicial district court. Although a judicial review is generally consistent with a factual or legal process, such a standard does not preclude a judicial or factual correction of a factual error. See, for example, a factual court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Id., at 1357. Moreover, a judicial reviewing standard should apply in all of the aspects of an appellate district court-review determination that is abused of discretion in a particular case, such as the one in this case. Octane, supra, at 7, is consistent with the standard set forth in the opinion in Pierce, supra at 558. Cf. Pierce. Separate review of that determination is not barred by the fact that the District Court, as a matter of the sound administration of justice, is better positioned to decide whether the exceptional-case determination is exceptional because it lives with the case over a prolonged period of time. And the question here ismultifarious, novel, and susceptible to useful generalization of the sort that de-novo review provides, andlikely to profit from experience that a rule of abuse will permit development. Therefore, the abuse of discretionary standard applies in all cases in which a district-reviewed determination is based on a factual inquiry. Section285 also should not be interpreted as unduly rigid and inconsistent with its ordinary meaning, but instead should be interpreted in accordance with the ordinary meaning of the word. Ante, 7, at 8, which instructs that a district district judge may determine whether an exceptional case is exceptional in the case-by-case exercise of their discretion, considering the totality of the circumstances. Petitioner, a health insurance company, brought suit in Federal District Court seeking a declaratory judgment that the patent was invalid and unenforceable, and that, to the extent it was valid, its actions were not infringing it. Petitioner counterclaimed for patent infringement. The District Court entered a judgment of noninfringement in favor of petitioner, and fixed the amount of the award at $4,694,727.40 in attorney's fees and $209,626.56 in expenses, in addition to $375,400.05 in expert fees. After the court, in a subsequent opinion, fixed the award for attorney's and expert fees, affirmed the exceptional case determination with respect to the allegations that the system infringed one claim of the patent, id., 1311–1313

2013_12-464

https://www.oyez.org/cases/2013/12-464

. A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989) , we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.” And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer. In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding. I A Criminal forfeitures are imposed upon conviction to confiscate assets used in or gained from certain serious crimes. See 21 U. S. C. §853(a). Forfeitures help to ensure that crime does not pay: They at once punish wrongdoing, deter future illegality, and “lessen the economic power” of criminal enterprises. Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 630 (1989) ; see id., at 634 (“Forfeiture provisions are powerful weapons in the war on crime”). The Government also uses forfeited property to recompense victims of crime, improve conditions in crime-damaged communities, and support law enforcement activities like police training. See id., at 629–630.[1] Accordingly, “there is a strong governmental interest in obtaining full recovery of all forfeitable assets.” Id., at 631. In line with that interest, §853(e)(1) empowers courts to enter pre-trial restraining orders or injunctions to “preserve the availability of [forfeitable] property” while criminal proceedings are pending. Such an order, issued “[u]pon application of the United States,” prevents a defendant from spending or transferring specified property, including to pay an attorney for legal services. Ibid. In Monsanto, our principal case involving this procedure, we held a pre-trial asset restraint constitutionally permissible whenever there is probable cause to believe that the property is forfeitable. See 491 U. S., at 615. That determinationhas two parts, reflecting the requirements for forfeit-ure under federal law: There must be probable cause to think (1) that the defendant has committed an offense permitting forfeiture, and (2) that the property at issue has the requisite connection to that crime. See §853(a). The Monsanto Court, however, declined to consider “whether the Due Process Clause requires a hearing” to establish either or both of those aspects of forfeitability. Id., at 615, n. 10.[2] Since Monsanto, the lower courts have generally pro-vided a hearing to any indicted defendant seeking to lift an asset restraint to pay for a lawyer. In that hearing, they have uniformly allowed the defendant to litigate the second issue stated above: whether probable cause exists to believe that the assets in dispute are traceable or otherwise sufficiently related to the crime charged in the indictment.[3] But the courts have divided over extending the hearing to the first issue. Some have considered, while others have barred, a defendant’s attempt to challenge the probable cause underlying a criminal charge.[4] This case raises the question whether an indicted defendant has a constitutional right to contest the grand jury’s prior determination of that matter. B The grand jury’s indictment in this case charges a scheme to steal prescription medical devices and resell them for profit. The indictment accused petitioner Kerri Kaley, a sales representative for a subsidiary of Johnson & Johnson, and petitioner Brian Kaley, her husband, with transporting stolen medical devices across state lines and laundering the proceeds of that activity.[5] The Kaleys have contested those allegations throughout this litigation, arguing that the medical devices at issue were unwanted, excess hospital inventory, which they could lawfully take and market to others. Immediately after obtaining the indictment, the Government sought a restraining order under §853(e)(1) to prevent the Kaleys from transferring any assets traceable to or involved in the alleged offenses. Included among those assets is a $500,000 certificate of deposit that the Kaleys intended to use for legal fees. The District Court entered the requested order. Later, in response to the Kaleys’ motion to vacate the asset restraint, the court denied a request for an evidentiary hearing and confirmed the order, except as to $63,000 that it found (based on the parties’ written submissions) was not connected to the alleged offenses. On interlocutory appeal, the Eleventh Circuit reversed and remanded for further consideration of whether some kind of evidentiary hearing was warranted. See 579 F. 3d 1246 (2009). The District Court then concluded that it should hold a hearing, but only as to “whether the restrained assets are traceable to or involved in the alleged criminal conduct.” App. to Pet. for Cert. 43, n. 5. The Kaleys informed the court that they no longer disputed that issue; they wished to show only that the “case against them is ‘baseless.’ ” Id., at 39; see App. 107 (“We are not contesting that the assets restrained were . . . traceable to the conduct. Our quarrel is whether that conduct constitutes a crime”). Accordingly, the District Court affirmed the restraining order, and the Kaleys took another appeal. The Eleventh Circuit this time affirmed, holding that the Kaleys were not entitled at a hearing on the asset freeze “to challenge the factual foundation supporting the grand jury’s probable cause determination[ ]”—that is, “the very validity of the underlying indictment.” 677 F. 3d 1316, 1317 (2012). We granted certiorari in light of the Circuit split on the question presented, 568 U. S. ___ (2013), and we now affirm the Eleventh Circuit. II This Court has twice considered claims, similar to the Kaleys’, that the Fifth Amendment’s right to due process and the Sixth Amendment’s right to counsel constrain the way the federal forfeiture statute applies to assets needed to retain an attorney. See Caplin & Drysdale, 491 U. S. 617 ; Monsanto, 491 U. S. 600 . We begin with those rulings not as mere background, but as something much more. On the single day the Court decided both those cases, it cast the die on this one too. In Caplin & Drysdale, we considered whether the Fifth and Sixth Amendments exempt from forfeiture money that a convicted defendant has agreed to pay his attorney. See 491 U. S., at 623–635. We conceded a factual premise of the constitutional claim made in the case: Sometimes “a defendant will be unable to retain the attorney of his choice,” if he cannot use forfeitable assets. Id., at 625. Still, we held, the defendant’s claim was “untenable.” Id., at 626. “A defendant has no Sixth Amendment right to spend another person’s money” for legal fees—even if that is the only way to hire a preferred lawyer. Ibid. Consider, we submitted, the example of a “robbery suspect” who wishes to “use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended.” Ibid. That money is “not rightfully his.” Ibid. Accordingly, we concluded, the Government does not violate the Constitution if, pursuant to the forfeiture statute, “it seizes the robbery proceeds and refuses to permit the defendant to use them” to pay for his lawyer. Ibid. And then, we confirmed in Monsanto what our “robbery suspect” hypothetical indicated: Even prior to conviction (or trial)—when the presumption of innocence still applies—the Government could constitutionally use §853(e) to freeze assets of an indicted defendant “based on a find-ing of probable cause to believe that the property will ultimately be proved forfeitable.” 491 U. S., at 615. In Monsanto, too, the defendant wanted to use the property at issue to pay a lawyer, and maintained that the Fifth and Sixth Amendments entitled him to do so. We dis-agreed. We first noted that the Government may sometimes “restrain persons where there is a finding of probable cause to believe that the accused has committed a serious offense.” Id., at 615–616. Given that power, we could find “no constitutional infirmity in §853(e)’s authorization of a similar restraint on [the defendant’s] property” in order to protect “the community’s interest” in recovering “ill-gotten gains.” Id., at 616. Nor did the defendant’s interest in retaining a lawyer with the disputed assets change the equation. Relying on Caplin & Drysdale, we reasoned: “[I]f the Government may, post-trial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order barring a defendant from frustrating that end by dissipating his assets prior to trial.” Ibid. So again: With probable cause, a freeze is valid. The Kaleys little dispute that proposition; their argument is instead about who should have the last word as to probable cause. A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses. See supra, at 5. The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that probable cause supports this criminal prosecution (or alternatively put, that the prosecution is not “baseless,” as the Kaleys believe, supra, at 5). And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries. This Court has often recognized the grand jury’s singular role in finding the probable cause necessary to initiate a prosecution for a serious crime. See, e.g., Costello v. United States, 350 U. S. 359, 362 (1956) . “[A]n indictment ‘fair upon its face,’ and returned by a ‘properly constituted grand jury,’ ” we have explained, “conclusively determines the existence of probable cause” to believe the defendant perpetrated the offense alleged. Gerstein v. Pugh, 420 U. S. 103 , n. 19 (1975) (quoting Ex parte United States, 287 U. S. 241, 250 (1932) ). And “conclusively” has meant, case in and case out, just that. We have found no “authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof.” Costello, 350 U. S., at 362–363 (quoting United States v. Reed, 27 F. Cas. 727, 738 (No. 16,134) (CC NDNY 1852) (Nelson, J.)). To the contrary, “the whole history of the grand jury institution” demonstrates that “a challenge to the reliability or competence of the evidence” supporting a grand jury’s finding of probable cause “will not be heard.” United States v. Williams, 504 U. S. 36, 54 (1992) (quoting Costello, 350 U. S., at 364, and Bank of Nova Scotia v. United States, 487 U. S. 250, 261 (1988) ). The grand jury gets to say—without any review, oversight, or second-guessing—whether probable cause exists to think that a person committed a crime. And that inviolable grand jury finding, we have decided, may do more than commence a criminal proceeding (with all the economic, reputational, and personal harm that entails); the determination may also serve the purpose of immediately depriving the accused of her freedom. If the person charged is not yet in custody, an indictment triggers “issuance of an arrest warrant without further inquiry” into the case’s strength. Gerstein, 420 U. S., at 117, n. 19; see Kalina v. Fletcher, 522 U. S. 118, 129 (1997) . Alternatively, if the person was arrested without a warrant, an indictment eliminates her Fourth Amendment right to a prompt judicial assessment of probable cause to support any detention. See Gerstein, 420 U. S., at 114, 117, n. 19. In either situation, this Court—relying on the grand jury’s “historical role of protecting individuals from unjust persecution”—has “let [that body’s] judgment substitute for that of a neutral and detached magistrate.” Ibid. The grand jury, all on its own, may effect a pre-trial restraint on a person’s liberty by finding probable cause to support a criminal charge.[6] The same result follows when, as here, an infringement on the defendant’s property depends on a showing of probable cause that she committed a crime. If judicial review of the grand jury’s probable cause determination is not warranted (as we have so often held) to put a defendant on trial or place her in custody, then neither is it needed to freeze her property. The grand jury that is good enough—reliable enough, protective enough—to inflict those other grave consequences through its probable cause findings must needs be adequate to impose this one too. Indeed, Monsanto already noted the absence of any reason to hold property seizures to different rules: As described earlier, the Court partly based its adoption of the probable cause standard on the incongruity of subjecting an asset freeze to any stricter requirements than apply to an arrest or ensuing detention. See supra, at 6; 491 U. S., at 615 (“[I]t would be odd to conclude that the Government may not restrain property” on the showing often sufficient to “restrain persons”). By similar token, the probable cause standard, once selected, should work no differently for the single purpose of freezing assets than for all others.[7] So the longstanding, unvarying rule of criminal procedure we have just described applies here as well: The grand jury’s determination is conclusive. And indeed, the alternative rule the Kaleys seek would have strange and destructive consequences. The Kaleys here demand a do-over, except with a different referee. They wish a judge to decide anew the exact question the grand jury has already answered—whether there is probable cause to think the Kaleys committed the crimes charged. But suppose the judge performed that task and came to the opposite conclusion. Two inconsistent findings would then govern different aspects of one criminal proceeding: Probable cause would exist to bring the Kaleys to trial (and, if otherwise appropriate, hold them in prison), but not to restrain their property. And assuming the prosecutor continued to press the charges,[8] the same judge who found probable cause lacking would preside over a trial premised on its presence. That legal dissonance, if sustainable at all, could not but undermine the criminal justice system’s integrity—and especially the grand jury’s integral, constitutionally prescribed role. For in this new world, every prosecution involving a pre-trial asset freeze would potentially pit the judge against the grand jury as to the case’s foundational issue.[9] The Kaleys counter (as does the dissent, post, at 7) that apparently inconsistent findings are not really so, because the prosecutor could have presented scantier evidence to the judge than he previously offered the grand jury. Suppose, for example, that at the judicial hearing the prosecutor put on only “one witness instead of all five”; then, the Kaleys maintain, the judge’s decision of no probable cause would mean only that “the Government did not satisfy its burden[ ] on that one day in time.” Tr. of Oral Arg. 12, 18; see Reply Brief 11–12. But we do not think that hypothetical solves the problem. As an initial matter, it does not foreclose a different fact pattern: A judge could hear the exact same evidence as the grand jury, yet respond to it differently, thus rendering what even the Kaleys must concede is a contradictory finding. And when the Kaleys’ hypothetical is true, just what does it show? Consider that the prosecutor in their example has left home some of the witnesses he took to the grand jury—presumably because, as we later discuss, he does not yet wish to reveal their identities or likely testimony. See infra, at 14–15. The judge’s ruling of no probable cause therefore would not mean that the grand jury was wrong: As the Kaleys concede, the grand jury could have heard more than enough evidence to find probable cause that they committed the crimes charged. The Kaleys would win at the later hearing despite, not because of, the case’s true merits. And we would then see still less reason for a judge to topple the grand jury’s (better supported) finding of probable cause.[10] Our reasoning so far is straightforward. We held in Monsanto that the probable cause standard governs the pre-trial seizure of forfeitable assets, even when they are needed to hire a lawyer. And we have repeatedly affirmed a corollary of that standard: A defendant has no right to judicial review of a grand jury's determination of probable cause to think a defendant committed a crime. In combination, those settled propositions signal defeat for the Kaleys because, in contesting the seizure of their property, they seek only to relitigate such a grand jury finding. III The Kaleys would have us undertake a different analysis, which they contend would lead to a different conclusion. They urge us to apply the balancing test of Mathews v. Eldridge, 424 U. S. 319 (1976) , to assess whether they have received a constitutionally sufficient opportunity to challenge the seizure of their assets. See Brief for Petitioners 32–64. Under that three-pronged test (reordered here for expositional purposes), a court must weigh (1) the burdens that a requested procedure would impose on the Government against (2) the private interest at stake, as viewed alongside (3) “the risk of an erroneous deprivation” of that interest without the procedure and “the probable value, if any, of [the] additional . . . procedural safeguard[ ].” Mathews, 424 U. S., at 335. Stressing the importance of their interest in retaining chosen counsel, the Kaleys argue that the Mathews balance tilts hardin their favor. It thus overrides—or so the Kaleys claim—all we have previously held about the finality of grand jury findings, entitling them to an evidentiary hearing be-fore a judge to contest the probable cause underlying the indictment. The Government battles with the Kaleys over whether Mathews has any application to this case. This Court devised the test, the Government notes, in an administrative setting—to decide whether a Social Security recipient was entitled to a hearing before her benefits were terminated. And although the Court has since employed the approach in other contexts, the Government reads Medina v. California, 505 U. S. 437 (1992) , as foreclosing its use here. In that case, we held that “the Mathews balancing test does not provide the appropriate framework for assessing the validity of state procedural rules which . . . are part of the criminal process,” reasoning that because the “Bill of Rights speaks in explicit terms to many aspects of criminal procedure,” the Due Process Clause “has limited operation” in the field. Id., at 443. That settles that, asserts the Government. See Brief for United States 18. But the Kaleys argue that Medina addressed a State’s procedural rule and relied on federalism principles not implicated here. Further, they claim that Medina concerned a criminal proceeding proper, not a collateral action seizing property. See Reply Brief 1–5. As to that sort of action, the Kaleys contend, Mathews should govern. We decline to address those arguments, or to define the respective reach of Mathews and Medina, because we need not do so. Even if Mathews applied here—even if, that is, its balancing inquiry were capable of trumping this Court’s repeated admonitions that the grand jury’s word is conclusive—the Kaleys still would not be entitled to the hearing they seek. That is because the Mathews test tips against them, and so only reinforces what we have already said. As we will explain, the problem for the Kaleys comes from Mathews’ prescribed inquiry into the requested procedure’s usefulness in correcting erroneous deprivations of their private interest. In light of Monsanto’s holding that a seizure of the Kaleys’ property is erroneous only if unsupported by probable cause, the added procedure demanded here is not sufficiently likely to make any difference. To begin the Mathews analysis, the Government has a substantial interest in freezing potentially forfeitable assets without an evidentiary hearing about the probable cause underlying criminal charges. At the least, such an adversarial proceeding—think of it as a pre-trial mini-trial (or maybe a pre-trial not-so-mini-trial)—could consume significant prosecutorial time and resources. The hearing presumably would rehearse the case’s merits, including the Government’s theory and supporting evidence. And the Government also might have to litigate a range of ancillary questions relating to the conduct of the hearing itself (for example, could the Kaleys subpoena witnesses or exclude certain evidence?). Still more seriously, requiring a proceeding of that kind could undermine the Government’s ability either to obtain a conviction or to preserve forfeitable property. To ensure a favorable result at the hearing, the Government could choose to disclose all its witnesses and other evidence. But that would give the defendant knowledge of the Government’s case and strategy well before the rules of criminal procedure—or principles of due process, see, e.g., Brady v. Maryland, 373 U. S. 83 (1963) —would otherwise require. See Fed. Rules Crim. Proc. 26.2(a), 16(a)(2); Weatherford v. Bursey, 429 U. S. 545 –561 (1977) (“There is no general constitutional right to discovery in a criminal case”). And sometimes (particularly in organized crime and drug trafficking prosecutions, in which forfeit-ure questions often arise), that sneak preview might not just aid the defendant’s preparations but also facilitate witness tampering or jeopardize witness safety. Alternatively, to ensure the success of its prosecution, the Government could hold back some of its evidence at the hearing or give up on the pre-trial seizure entirely. But if the Government took that tack, it would diminish the likelihood of ultimately recovering stolen assets to which the public is entitled.[11] So any defense counsel worth his salt—whatever the merits of his case—would put the prosecutor to a choice: “Protect your forfeiture by providing discovery” or “protect your conviction by surrendering the assets.”[12] It is small wonder that the Government wants to avoid that lose-lose dilemma. For their part, however, defendants like the Kaleys have a vital interest at stake: the constitutional right to retain counsel of their own choosing. See Wheat v. United States, 486 U. S. 153, 159 (1988) (describing the scope of, and various limits on, that right). This Court has recently described that right, separate and apart from the guarantee to effective representation, as “the root meaning” of the Sixth Amendment. United States v. Gonzalez-Lopez, 548 U. S. 140 –148 (2006); cf. Powell v. Alabama, 287 U. S. 45, 53 (1932) (“It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice”).[13] Indeed, we have held that the wrongful deprivation of choice of counsel is “structural error,” immune from review for harmlessness, because it “pervades the entire trial.” Gonzalez-Lopez, 548 U. S., at 150. Different lawyers do all kinds of things differently, sometimes “affect[ing] whether and on what terms the defendant . . . plea bargains, or decides instead to go to trial”—and if the latter, possibly affecting whether she gets convicted or what sentence she receives. Ibid. So for defendants like the Kaleys, having the ability to retain the “counsel [they] believe[ ] to be best”—and who might in fact be superior to any existing alternatives—matters profoundly. Id., at 146. And yet Monsanto held, crucially for the last part of our Mathews analysis, that an asset freeze depriving a defend-ant of that interest is erroneous only when unsupportedby a finding of probable cause. Recall that Monsanto considered a case just like this one, where the defendant wanted to use his property to pay his preferred lawyer. He urged the Court to hold that the Government could seize assets needed for that purpose only after conviction. But we instead decided that the Government could act “after probable cause [that the assets are forfeitable] is adequately established.” 491 U. S., at 616. And that means in a case like this one—where the assets’ connection to the allegedly illegal conduct is not in dispute, see supra, at 5—that a pre-trial seizure is wrongful only when there is no probable cause to believe the defendants committed the crimes charged. Or to put the same point differently, such a freeze is erroneous—notwithstanding the weighty burden it imposes on the defendants’ ability to hire a chosen lawyer—only when the grand jury should never have issued the indictment. The Mathews test’s remaining prong—critical when the governmental and private interests both have weight—thus boils down to the “probable value, if any,” of a judicial hearing in uncovering mistaken grand jury findings of probable cause. 424 U. S., at 335. The Kaleys (and the dissent) contend that such proceedings will serve an important remedial function because grand juries hear only a “one-sided presentation[ ]” of evidence. Brief for Petitioners 57; see post, at 16. And that argument rests on a generally sound premise: that the adversarial process leads to better, more accurate decision-making. But in this context—when the legal standard is merely probable cause and the grand jury has already made that finding—both our precedents and other courts’ experience indicate that a full-dress hearing will provide little benefit. This Court has repeatedly declined to require the use of adversarial procedures to make probable cause determinations. Probable cause, we have often told litigants, is not a high bar: It requires only the “kind of ‘fair probability’ on which ‘reasonable and prudent [people,] not legal technicians, act.’ ” Florida v. Harris, 568 U. S. __, __ (2013) (slip op., at 5) (quoting Illinois v. Gates, 462 U. S. 213, 231, 238 (1983) ); see Gerstein, 420 U. S., at 121 (contrasting probable cause to reasonable-doubt and preponderance standards). That is why a grand jury’s finding of probable cause to think that a person committed a crime “can be [made] reliably without an adversary hearing,” id., at 120; it is and “has always been thought sufficient to hear only the prosecutor’s side,” United States v. Williams, 504 U. S. 36, 51 (1992) . So, for example, we have held the “confrontation and cross-examination” of witnesses unnecessary in a grand jury proceeding. Gerstein, 420 U. S., at 121–122. Similarly, we have declined to require the presentation of exculpatory evidence, see Williams, 504 U. S., at 51, and we have allowed the introduction of hearsay alone, see Costello, 350 U. S., at 362–364. On each occasion, we relied on the same reasoning, stemming from our recognition that probable cause served only a gateway function: Given the relatively undemanding “nature of the determination,” the value of requiring any additional “formalities and safeguards” would “[i]n most cases . . . be too slight.” Gerstein, 420 U. S., at 121–122. We can come out no differently here. The probable cause determinations the Kaleys contest are simply those underlying the charges in the indictment. No doubt the Kaleys could seek to poke holes in the evidence the Government offered the grand jury to support those allegations. No doubt, too, the Kaleys could present evidence of their own, which might cast the Government’s in a different light. (Presumably, the Kaleys would try in those two ways to show that they did not steal, but instead lawfully obtained the medical devices they later resold. See supra, at 4.) Our criminal justice system of course relies on such contestation at trial when the question becomes whether a defendant is guilty beyond peradventure. But as we have held before, an adversarial process is far less useful to the threshold finding of probable cause, which determines only whether adequate grounds exist to proceed to trial and reach that question. The probable cause decision, by its nature, is hard to undermine, and still harder to reverse. So the likelihood that a judge holding an evidentiary hearing will repudiate the grand jury’s decision strikes us, once more, as “too slight” to support a constitutional requirement. Gerstein, 420 U. S., at 122. The evidence from other courts corroborates that view, over and over and over again. In the past two decades, the courts in several Circuits have routinely held the kind of hearing the Kaleys seek. See supra, at 3, and n. 4. Yet neither the Kaleys nor their amici (mostly lawyers’ associations) have found a single case in which a judge found an absence of probable cause to believe that an indicted defendant committed the crime charged. One amicus cites 25 reported cases involving pre-trial hearings on asset freezes. See Brief for New York Council of Defense Lawyers 4, n. 2. In 24 of those, the defendant lost outright. The last involved a not-yet-indicted defendant (so no grand jury finding); there, the District Court’s ruling for him was reversed on appeal. See Tr. of Oral Arg. 15, 36. To be sure, a kind of selection bias might affect those statistics: Perhaps a prosecutor with a very weak case would choose to abandon an asset freeze rather than face a difficult hearing. See id., at 16, 37. But the Kaleys and their amici have also failed to offer any anecdotes of that kind; and we suspect that the far more common reason a prosecutor relinquishes a freeze is just to avoid premature discovery. See supra, at 14–15. So experience, as far as anyone has discerned it, cuts against the Kaleys: It confirms that even under Mathews, they have no right to revisit the grand jury’s finding.[14] IV When we decided Monsanto, we effectively resolved this case too. If the question in a pre-trial forfeiture case is whether there is probable cause to think the defendant committed the crime alleged, then the answer is: whatever the grand jury decides. And even if we test that proposition by applying Mathews, we arrive at the same place: In considering such findings of probable cause, we have never thought the value of enhanced evidentiary procedures worth their costs. Congress of course may strike its own balance and give defendants like the Kaleys the kind of hearing they want. Indeed, Congress could disapprove of Monsanto itself and hold pre-trial seizures of property to a higher standard than probable cause. But the Due Process Clause, even when combined with a defendant’s Sixth Amendment interests, does not command those results. Accordingly, the Kaleys cannot challenge the grand jury’s conclusion that probable cause supports the charges against them. The grand jury gets the final word. We therefore affirm the judgment of the Eleventh Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.Notes 1 Between January 2012 and April 2013, for example, the Department of Justice returned over $1.5 billion in forfeited assets to more than 400,000 crime victims. See Dept. of Justice, Justice Department Returned $1.5 Billion to Victims of Crime Since January 2012 (Apr. 26, 2013), online at http://www.justice.gov/opa/pr/2013/April/13-crm-480.html (as visited Feb. 21, 2014 and available in the Clerk of the Court’s case file). 2 The forfeiture statute itself requires a hearing when the Government seeks to restrain the assets of someone who has not yet been indicted. See . That statutory provision is not at issue in this case, which involves a pair of indicted defendants. 3 At oral argument, the Government agreed that a defendant has a constitutional right to a hearing on that question. See Tr. of Oral Arg. 45. We do not opine on the matter here. 4 Compare v. , 521 F. 3d 411 (CADC 2008) (holding that a defendant is entitled to raise such a challenge); v. , 37 Fed. Appx. 870, 873 (CA9 2002) (same); v. , 39 F. 3d 684, 700 (CA7 1994) (same); v. , 924 F. 2d 1186 (CA2 1991) (en banc) (same), with v. , 427 F. 3d 394, 406–407 (CA6 2005) (prohibiting a defendant from raising such a challenge); v. , 274 F. 3d 800, 803–806 (CA4 2001) (same); v. , 160 F. 3d 641, 648–649 (CA10 1998) (same). 5 An earlier version of the indictment did not include the money laundering charge. In its superseding indictment, the Government also accused Jennifer Gruenstrass, another sales representative, of transporting stolen property and money laundering. Her case went to trial, and she was acquitted. Several other sales representatives participating in the Kaleys’ activity entered guilty pleas (each to a charge of shipping stolen goods) during the Government’s investigation. 6 The grand jury’s unreviewed finding similarly may play a significant role in determining a defendant’s eligibility for release before trial under the Bail Reform Act of 1984, That statute creates a rebuttable presumption that a defendant is ineligible for bail if “there is probable cause to believe” she committed certain serious crimes. §§3142(e)(2)–(3), (f). The Courts of Appeal have uniformly held that presumption to operate whenever an indictment charges those offenses. Relying on our instruction that an indictment returned by a proper grand jury “conclusively determines the existence of probable cause,” the courts have denied defendants’ calls for any judicial reconsideration of that issue. v. , 776 F. 2d 51, 54 (CA2 1985) (quoting v. , , n. 19 (1975)); see, v. , 799 F. 2d 115, 117–119 (CA3 1986); v. , 804 F. 2d 157, 162–163 (CA1 1986) (); v. , 779 F. 2d 1467, 1477–1479 (CA11 1985). 7 Contrary to the dissent’s characterization, see at 11–12, nothing in our reasoning depends on viewing one consequence of a probable cause determination (say, detention) as “greater” than another (say, the asset freeze here). (We suspect that would vary from case to case, with some defendants seeing the loss of liberty as the more significant deprivation and others the loss of a chosen lawyer.) We simply see no reason to treat a grand jury’s probable cause determination as conclusive for all other purposes (including, in some circumstances, locking up the defendant), but not for the one at issue here. 8 A prosecutor, of course, might drop the case because of the court’s ruling, especially if he thought that decision would bring into play an ethical standard barring any charge “that the prosecutor knows is not supported by probable cause.” ABA Model Rule of Professional Conduct 3.8(a) (2013). But then the court would have effectively done what we have long held it cannot: overrule the grand jury on whether to bring a defendant to trial. See , at 7–8. 9 The dissent argues that the same is true when a judge hears evidence on whether frozen assets are traceable to a crime, because that allegation also appears in the indictment. See , at 6–7;, at 3, and n. 3.But the tracing of assets is a technical matter far removed from the grand jury’s core competence and traditional function—to determine whether there is probable cause to think the defendant committed a crime. And a judge’s finding that assets are not traceable to the crime charged in no way casts doubt on the prosecution itself. So that determination does not similarly undermine the grand jury or create internal contradictions within the criminal justice system. 10 The dissent claims as well that the hearing the Kaleys seek “would not be mere relitigation” of the grand jury’s decision because they could now “tell their side of the story.” , at 8. But the same could be said of an adversarial hearing on an indictment’s validity, which everyone agrees is impermissible because it “look[s] into and revise[s]” the grand jury’s judgment. See (quoting v. ). The lesson of our precedents, as described above, is that a grand jury’s finding is “conclusive”—and thus precludes subsequent proceedings on the same matter—even though not arising from adversarial testing. See at 7–8; see also , at 17–18. 11 The dissent says not to worry—the Government can obtain the assets after conviction by using ’s “relation-back” provision. See at 15. That provision is intended to aid the Government in recovering funds transferred to a third party—here, the Kaleys’ lawyer—subsequent to the crime. But forfeiture applies only to specific assets, so in the likely event that the third party has spent the money, the Government must resort to a State’s equitable remedies—which may or may not even be available—to force him to disgorge an equivalent amount. See Tr. of Oral Arg. 48–49. And indeed, if the Government easily recover such monies, then few lawyers would agree to represent defendants like the Kaleys, and the dissent’s proposed holding would be for naught. 12 Compare Cassella, Criminal Forfeiture Procedure, 32 Am. J. Crim. L. 55, 63 (2004) (explaining that “defendants tend to demand the hearing . . . to afford defense counsel an early opportunity to discover the nature of the Government’s criminal case and to cross-examine some of the Government’s witnesses”) with May, Attorney Fees and Government Forfeiture, 34 Champion 20, 23 (Apr. 2010) (advising that “[e]ven if defense counsel cannot prevail on the facts or the law, he may be able to prevail anyway” because “[s]ometimes the government will decide to give up its restraint on a piece of property rather than engage in litigation that will result in early discovery”). 13 Still, a restraint on assets could not deprive the Kaleys of representation sufficient to ensure fair proceedings. The would require the appointment of effective counsel if the Kaleys were unable to hire a lawyer. See v. , ; v. , . The vast majority of criminal defendants proceed with appointed counsel. And the Court has never thought, as the dissent suggests today, that doing so risks the “fundamental fairness of the actual trial.” , at 12; see , at 17–18. If it does, the right way to start correcting the problem is not by adopting the dissent’s position, but by ensuring that the right to effective counsel is fully vindicated. 14 As against all this—all we have formerly held and all other courts have actually found—the dissent cites nothing: not a single decision of ours suggesting, nor a single decision of a lower court demonstrating, that formal, adversarial procedures are at all likely to correct any grand jury errors. The dissent argues only that a hearing will have “probable value” for the Kaleys because “the deprivation of [their] right” to chosen counsel, once accomplished, is “effectively permanent.” , at 16. But that argument confuses two different parts of the inquiry. The dissent’s point well underscores the importance of the Kaleys’ interest: As we have readily acknowledged, if the grand jury made a mistake, the Kaleys have suffered a serious injury, which cannot later be corrected. See , at 16–17. (We note, though, that the dissent, in asserting that injury’s uniqueness, understates the losses that always attend a mistaken indictment, which no ultimate verdict can erase.) But the dissent’s argument about what is at stake for the Kaleys says nothing about the crucial, last prong of , which asks whether and to what extent the adversarial procedures they request will in fact correct any grand jury errors. That part of the analysis is what requires our decision, and the dissent’s view that the Government overreached in this particular case cannot overcome it.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus KALEY et vir v. UNITED STATES certiorari to the united states court of appeals for the eleventh circuit No. 12–464. Argued October 16, 2013—Decided February 25, 2014 Title 21 U. S. C. §853(e)(1) empowers courts to enter pre-trial restraining orders to “preserve the availability of [forfeitable] property” while criminal proceedings are pending. Such pre-trial asset restraints are constitutionally permissible whenever probable cause exists to think that a defendant has committed an offense permitting forfeiture and that the assets in dispute are traceable or otherwise sufficiently related to the crime charged. United States v. Monsanto, 491 U.S. 600. After a grand jury indicted petitioners, Kerri and Brian Kaley, for reselling stolen medical devices and laundering the proceeds, the Government obtained a §853(e)(1) restraining order against their assets. The Kaleys moved to vacate the order, intending to use a portion of the disputed assets for their legal fees. The District Court allowed them to challenge the assets’ traceability to the offenses in question but not the facts supporting the underlying indictment. The Eleventh Circuit affirmed. Held: When challenging the legality of a §853(e)(1) pre-trial asset seizure, a criminal defendant who has been indicted is not constitutionally entitled to contest a grand jury’s determination of probable cause to believe the defendant committed the crimes charged. . (a) In Monsanto, this Court held that the Government may seize assets before trial that a defendant intends to use to pay an attorney, so long as probable cause exists “to believe that the property will ultimately be proved forfeitable.” 491 U. S., at 615. The question whether indicted defendants like the Kaleys are constitutionally entitled to a judicial re-determination of the grand jury’s probable cause conclusion in a hearing to lift an asset restraint has a ready answer in the fundamental and historic commitment of the criminal justice system to entrust probable cause findings to a grand jury. A probable cause finding sufficient to initiate a prosecution for a serious crime is “conclusive[e],” Gerstein v. Pugh, 420 U.S. 103, 117, n. 19, and, as a general matter, “a challenge to the reliability or competence of the evidence” supporting that finding “will not be heard,” United States v. Williams, 504 U.S. 36, 54. A grand jury’s probable cause finding may, on its own, effect a pre-trial restraint on a person’s liberty. Gerstein, 420 U. S., at 117, n. 19. The same result follows when it works to restrain a defendant’s property. The Kaleys’ alternative rule would have strange and destructive consequences. Allowing a judge to decide anew what the grand jury has already determined could result in two inconsistent findings governing different aspects of one criminal proceeding, with the same judge who found probable cause lacking presiding over a trial premised on its existence. That legal dissonance could not but undermine the criminal justice system’s integrity, especially the grand jury’s constitutional role. . (b) The balancing test of Mathews v. Eldridge, 424 U. S. 319—which requires a court to weigh (1) the burdens that a requested procedure would impose on the government against (2) the private interest at stake, as viewed alongside (3) “the risk of an erroneous deprivation” of that interest without the procedure and “the probable value, if any, of [the] additional . . . procedural safeguar[d],” id., at 335—if applicable here, tips against the Kaleys. Because the Government’s interest in freezing potentially forfeitable assets without an adversarial hearing about the probable cause underlying criminal charges and the Kaleys’ interest in retaining counsel of their own choosing are both substantial, the test’s third prong is critical. It boils down to the “probable value, if any,” of a judicial hearing in uncovering mistaken grand jury probable cause findings. But when the legal standard is merely probable cause and the grand jury has already made that finding, a full-dress hearing will provide little benefit. See Florida v. Harris, 568 U. S. ___, ___. A finding of probable cause to think that a person committed a crime “can be [made] reliably without an adversary hearing,” Gerstein, 420 U. S., at 120, and the value of requiring additional “formalities and safeguards” would “[i]n most cases . . . be too slight,” id., at 121–122. The experience of several Circuits corroborates this view. Neither the Kaleys nor their amici point to a single case in two decades where courts, holding hearings of the kind they seek, have found the absence of probable cause to believe that an indicted defendant committed the crime charged. . 677 F.3d 1316, affirmed and remanded. Kagan, J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, Ginsburg, and Alito, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Breyer and Sotomayor, JJ., joined.

A federal statute authorizes a court to freeze an indicted defendant's assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615, this Court approved the constitutionality of such an order so long as it is based on a finding of probable cause to believe that the property involved was traceable or involved in the alleged criminal conduct. However, the lower courts have uniformly pro-vided a pre-trial asset restraint in any indicted defendant seeking to lift such an asset restraint to pay for a lawyer. The courts have divided over extending the hearing to the first issue. Some have considered, while others have barred, a defendant's attempt to challenge the probable cause underlying a criminal charge. Here, the indicted defendants, who were indicted for a scheme to steal prescription medical devices and resell them for profit, contested the court's order. Respondents sought to vacate the order on the ground that it was not connected to the alleged offenses. On interlocutory appeal, the Eleventh Circuit reversed and remanded for further consideration of whether some kind of evidentiary hearing was warranted, concluding that it should hold a hearing on the asset freeze, but only as to whether the restrained assets were traceable to or related to the crime charged in the indictment. Accordingly, the District Court affirmed the restraining order, and the Court of Appeals affirmed. Held: Criminal defendants are not entitled at such a hearing to contest a grand jury's prior determination that they committed the crimes charged. . (a) The Fifth and Sixth Amendments do not exempt from forfeiture money that a convicted defendant has agreed to pay his attorney. Although, in Monsanto, supra, the court held, inter alia, that probable cause exists to believe a defendant has committed an offense permitting forfeiture, it declined to consider whether the Due Process Clause of the Fifth Amendment requires a hearing. Such a hearing would, in fact, serve the purpose of immediately depriving the accused of her freedom. Pp. 456 U.S. 617-621. (b) Even if Mathews applied here, even if, that is, its balancing inquiry were capable of trumping this Court's repeated admonitions that the grand jury was conclusive, the Kaleys still would not be entitled to the hearing they sought. That is because the Mathews test tips against them, and so only reinforces what has already been said. Moreover, the added procedure demanded here is not sufficiently likely to make any difference. Because the Government has a substantial interest in freezing potentially forfeitable assets without an evidentiary hearing about the probable causes underlying criminal charges, it would have a substantial and costly interest in relitigating the seizure of the property.. 679 F. 3d 1316, affirmed in part and reversed in part. EVENS, J., wrote the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in Parts I, II, and III of which BRENNAN, MARSHALL, and STEVENS joined. DOUGLAS, J, filed a dissenting opinion, post, p..

2013_12-609

https://www.oyez.org/cases/2013/12-609

. The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .” The question here is whether the Fifth Amendment prohibits the government from introducing evidence from a court-ordered mental evaluation of a criminal defendant to rebut that defendant’s presentation of expert testimony in support of a defense of voluntary intoxication. We hold that it does not. I On the morning of January 19, 2005, Scott Cheever shot and killed Matthew Samuels, a sheriff of Greenwood County, Kansas, and shot at other local law enforcement officers. In the hours before the shooting, Cheever and his friends had cooked and smoked methamphetamine at a home near Hilltop, Kansas. Samuels and multiple deputies drove there to arrest Cheever on an unrelated outstanding warrant. When one of Cheever’s friends warned him that officers were en route, Cheever rushed outside and tried to drive away, but his car had a flat tire. He returned inside and hid with a friend in an upstairs bedroom, holding a loaded .44 caliber revolver. Cheever then heard footsteps on the stairs leading up to the room, and he stepped out and shot Samuels, who was climbing the stairs. After briefly returning to the bedroom, Cheever walked back to the staircase and shot Samuels again. He also shot at a deputy and a detective, as well as members of a local SWAT (special weapons and tactics) team that had since arrived. Only Samuels was hit. The State charged Cheever with capital murder. But shortly thereafter, in an unrelated case, the Kansas Supreme Court found the State’s death penalty scheme unconstitutional. State v. Marsh, 278 Kan. 520, 102 P. 3d 445 (2004). Rather than continuing to prosecute Cheever without any chance of a death sentence, state prosecutors dismissed their charges and allowed federal authorities to prosecute Cheever under the Federal Death Penalty Act of 1994, 18 U. S. C. §3591 et seq. In the federal case, Cheever filed notice that he “intend[ed] to introduce expert evidence relating to his intoxication by methamphetamine at the time of the events on January 19, 2005, which negated his ability to form spe-cific intent, e.g., malice aforethought, premeditation and deliberation.” App. to Pet. for Cert. 69–70. Pursuant to Federal Rule of Criminal Procedure 12.2(b), the District Court ordered Cheever to submit to a psychiatric evaluation by Michael Welner, a forensic psychiatrist, to assess how methamphetamine use had affected him when he shot Samuels. Welner interviewed Cheever for roughly five and a half hours. The federal case proceeded to trial. Seven days into jury selection, however, defense counsel became unable to continue; the court suspended the proceedings and later dismissed the case without prejudice. Meanwhile, this Court had reversed the Kansas Supreme Court and held that the Kansas death penalty statute was constitutional. Kansas v. Marsh, 548 U. S. 163, 167 (2006) . A second federal prosecution never commenced. Kansas then brought a second state prosecution. At the state trial, Cheever presented a voluntary-intoxication defense, arguing that his methamphetamine use had ren-dered him incapable of premeditation. In support of this argument, Cheever offered testimony from Roswell Lee Evans, a specialist in psychiatric pharmacy and dean of the Auburn University School of Pharmacy. Evans opined that Cheever’s long-term methamphetamine use had damaged his brain. [ 1 ] Evans also testified that on the morning of the shooting, Cheever was acutely intoxicated. According to Evans, Cheever’s actions were “very much influenced by” his use of methamphetamine. After the defense rested, the State sought to present rebuttal testimony from Welner, the expert who had examined Cheever by order of the federal court. Defense counsel objected, arguing that because Welner’s opinions were based in part on an examination to which Cheever had not voluntarily agreed, his testimony would violate the Fifth Amendment proscription against compelling an accused to testify against himself. The State countered that the testimony was necessary to rebut Cheever’s voluntary-intoxication defense. The trial court agreed with the State. The court was persuaded, in part, by the fact that the defense expert had himself relied on Welner’s examination report: “I think that fact alone probably allows the State to call [Welner] to give his own point of view.” App. 92. The court allowed Welner’s testimony for the purpose of showing that Cheever shot Samuels “because of his antisocial personal-ity, not because his brain was impaired by methamphetamine.” Id., at 94. The jury found Cheever guilty of murder and attempted murder. At the penalty phase, it unanimously voted to impose a sentence of death, and the trial court accepted that verdict. On appeal to the Kansas Supreme Court, Cheever argued that the State had violated his Fifth Amendment rights when it introduced, through Welner’s testimony, statements that he had made during the federal court-ordered mental examination. The court agreed, relying primarily on Estelle v. Smith, 451 U. S. 454 (1981) , in which we held that a court-ordered psychiatric exami-nation violated the defendant’s Fifth Amendment rights when the defendant neither initiated the examination nor put his mental capacity in dispute at trial. 295 Kan. 229, 243–244, 284 P. 3d 1007, 1019–1020 (2012) (per curiam). The court acknowledged, id., at 244–245, 284 P. 3d, at 1020, our holding that a State may introduce the results of a court-ordered mental examination for the limited purpose of rebutting a mental-status defense. Buchanan v. Kentucky, 483 U. S. 402 –424 (1987). But it distinguished Buchanan on the basis that under Kansas law, voluntary intoxication is not a “mental disease or defect.” 295 Kan., at 250, 284 P. 3d, at 1023. Consequently, it vacated Cheever’s conviction and sentence, holding that Cheever had not waived his Fifth Amendment privilege and that his federal court-ordered examination should not have been used against him at the state-court trial. Ibid. We granted certiorari, 568 U. S. ___ (2013), and now reverse. II The Fifth Amendment guarantees that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .” We held in Estelle that under the Fifth Amendment, when a criminal defendant “neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence,” his compelled statements to a psychiatrist cannot be used against him. 451 U. S., at 468. In that case, a judge ordered a psychiatric exam-ination to determine the defendant’s competency to stand trial. Id., at 456–457. The prosecution then used statements from that examination during the sentencing phase of the trial as evidence of the defendant’s future dangerousness. Id., at 458–460. Emphasizing that the defendant had neither “introduced” any “psychiatric evidence,” nor even “indicated that he might do so,” id., at 466, we concluded that the Fifth Amendment did not permit the State to use the defendant’s statements in this manner. In Buchanan, we addressed the admissibility of evidence from a court-ordered evaluation where—unlike in Estelle—a defendant had introduced psychiatric evidence related to his mental-status defense. We held that the Fifth Amendment allowed the prosecution to present evidence from the evaluation to rebut the defendant’s affirmative defense of extreme emotional disturbance. And while, as Cheever notes, the mental evaluation in Buchanan was requested jointly by the defense and the government, our holding was not limited to that circumstance. Moreover, contrary to Cheever’s suggestion, the case did not turn on whether state law referred to extreme emotional disturbance as an “affirmative defense.” Buchanan, 483 U. S., at 408, 422 (holding that the prosecution’s use of rebuttal expert testimony is permissible where a defendant “presents psychiatric evidence”). The rule of Buchanan, which we reaffirm today, is that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal. Ibid. Any other rule would undermine the adversarial process, allowing a defendant to provide the jury, through an expert operating as proxy, with a one-sided and potentially inaccurate view of his mental state at the time of the alleged crime. The admission of this rebuttal testimony harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not allow him to refuse to answer related questions on cross-examination. A defendant “has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.” Fitzpatrick v. United States, 178 U. S. 304, 315 (1900) . We explained in Brown v. United States, 356 U. S. 148 (1958) , which involved a witness’s refusal to answer questions in a civil case, that where a party provides testimony and then refuses to answer potentially incriminating questions, “[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.” Id., at 156. When a defendant presents evidence through a psychological expert who has examined him, the government likewise is permitted to use the only effective means of challenging that evidence: testimony from an expert who has also examined him. See United States v. Byers, 740 F. 2d 1104, 1113 (CADC 1984) (en banc) (holding that the Government could present rebuttal expert testimony in part because it is perhaps “the most trustworthy means of attempting to meet” the burden of proof (internal quotation marks omitted)). [ 2 ] The prosecution here elicited testimony from its expert only after Cheever offered expert testimony about his in-ability to form the requisite mens rea. The testimony of the government expert rebutted that of Cheever’s expert. See id. at 1114 (“Ordinarily the only effective rebuttal of psychiatric opinion testimony is contradictory opinion tes-timony; and for that purpose . . . the basic tool of psy-chiatric study remains the personal interview, which requires rapport between the interviewer and the subject” (internal quotation marks omitted)); State v. Druke, 143 Ariz. 314, 318, 693 P. 2d 969, 973 (App. 1984) (“[A]n in-ference would arise that the evidence presented by the [defendant] as to his mental condition is true because un-contradicted”). The trial court therefore did not violate the Fifth Amendment when it allowed Welner to testify that Cheever “made a choice to shoot,” App. 131, because the State permissibly followed where the defense led. Excluding this testimony would have undermined Buchanan and the core truth-seeking function of the trial. III Neither the Kansas Supreme Court’s reasoning, nor Cheever’s arguments, persuade us not to apply the settled rule of Buchanan. A Although the Kansas Supreme Court acknowledged that the State may present evidence obtained from a compelled psychiatric examination when “the defendant presents evidence at trial that he or she lacked the requisite criminal intent due to mental disease or defect,” 295 Kan., at 249, 284 P. 3d, at 1023, it reasoned that voluntary intoxication is not a “mental disease or defect” as a matter of state law. Id., at 250, 284 P. 3d, at 1023–1024 (citing State v. Kleypas, 272 Kan. 894, 40 P. 3d 139 (2001)). The court therefore concluded that “Cheever did not waive his Fifth Amendment privilege and thus permit his court-ordered examination by Dr. Welner to be used against him at trial.” 295 Kan., at 251, 284 P. 3d, at 1024. This reasoning misconstrues our precedents. Although Kansas law defines “mental disease or defect” narrowly, to exclude voluntary intoxication, that phrase is actually not the salient one under our precedents. In Buchanan, we permitted rebuttal testimony where the defendant presented evidence of “the ‘mental status’ defense of extreme emotional disturbance.” 483 U. S., at 423. And “mental status” is a broader term than “mental disease or defect,” at least to the extent that Kansas law excludes voluntary intoxication from that definition. Mental-status defenses include those based on psychological expert evidence as to a defendant’s mens rea, mental capacity to commit the crime, or ability to premeditate. Defendants need not as-sert a “mental disease or defect” in order to assert a defense based on “mental status.” To the extent that the Kansas Supreme Court declined to apply Buchanan because Cheever’s intoxication was “temporary,” our precedents are again not so narrowly circumscribed. Like voluntary intoxication, extreme emotional disturbance is a “temporary” condition, at least according to the Kentucky state courts where Buchanan was tried. See McClellan v. Commonwealth, 715 S. W. 2d 464, 468–469 (Ky. 1986) (defining extreme emotional disturbance as “a temporary state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause one to act uncontrollably from [an] impelling force of [an] extreme emotional disturbance rather than from evil or malicious purposes”). We nonetheless held in Buchanan that the defense of extreme emotional disturbance, when supported by expert testimony, may be re-butted with expert testimony. The same is true here. Cheever’s psychiatric evidence concerned his mental status because he used it to argue that he lacked the requisite mental capacity to premeditate. The Fifth Amendment therefore did not bar the State from using Welner’s examination to rebut Cheever’s voluntary-intoxication defense. B Cheever further contends that the Fifth Amendment imposes limits on the State’s ability to introduce rebuttal evidence regarding a defendant’s mental status. According to Cheever, Welner’s testimony exceeded these limits by describing the shooting from Cheever’s perspective; [ 3 ] by insinuating that he had a personality disorder; and by discussing his alleged infatuation with criminals. We have held that testimony based on a court-ordered psychiatric evaluation is admissible only for a “limited rebuttal purpose.” Buchanan, 483 U. S., at 424. In Buchanan, for example, although the prosecution had used a psychiatric report to rebut the defendant’s evidence of extreme emotional disturbance, we noted that the trial court had redacted the report so as to avoid exposing the jury to “the very different issue” of the defendant’s competency to stand trial. Id., at 423, n. 20. Two years later, we explained in dictum that “[n]othing” in our precedents “suggests that a defendant opens the door to the admission of psychiatric evidence on future dangerousness by raising an insanity defense at the guilt stage of the trial.” Powell v. Texas, 492 U. S. 680 –686, n. 3 (1989) ( per curiam). Here, however, the Kansas Supreme Court did not address whether Welner’s testimony exceeded the scope of rebuttal testimony permitted by the Fifth Amendment or by the State’s evidentiary rules. We accordingly decline to address this issue in the first instance. [ 4 ] * * * We hold that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. The judgment of the Kansas Supreme Court is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 Evans described this damage as “neurotoxicity,” which is “the qual-ity of exerting a destructive or poisonous effect upon the nerve tissue.” The Sloane-Dorland Annotated Medical-Legal Dictionary 498 (1987). 2 For that reason, we reject Cheever’s suggestion that the State could effectively have rebutted the testimony of his expert by introducing testimony from experts who had not personally examined him. 3 In an extended soliloquy, Dr. Welner narrated the crime from Cheever’s perspective, in part as follows: “I don’t jump out of the window the way my confederate later does. And when I do shoot,I don’t shoot before Matthew Samuels walks through the curtain in such a way that I might scare him, the way my later shots frightened the deputies that came to pull him away, but I shoot him at a point in which he is very much within my range, has passed through that curtain, and I know that he is coming upstairs, and that is when I shoot.” App. 130–131. 4 Kansas contends that reaching a federal constitutional question may not be necessary because Cheever argued in opposing certiorari that the scope of Welner’s testimony violated state evidentiary rules. Reply Brief 4–5. We agree with the State that the impact of Kansas evidentiary rules is a matter best left to the state courts to decide on remand. We do observe, however, that while our holding today suggests a constitutional ceiling on the scope of expert testimony that the prosecution may introduce in rebuttal, States (and Congress) remain free to impose additional limitations on the scope of such rebuttal evidence in state and federal trials.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus KANSAS v. CHEEVER certiorari to the supreme court of kansas No. 12–609. Argued October 16, 2013—Decided December 11, 2013 Shortly after respondent Cheever was charged with capital murder, the Kansas Supreme Court found the State’s death penalty scheme unconstitutional. State prosecutors then dismissed their charges to allow federal authorities to prosecute him. When Cheever filed notice that he intended to introduce expert evidence that methamphetamine intoxication negated his ability to form specific intent, the Federal District Court ordered Cheever to submit to a psychiatric evaluation. The federal case was eventually dismissed without prejudice. Meanwhile, this Court held the State’s death penalty scheme constitutional, see Kansas v. Marsh, 548 U.S. 163. The State then brought a second prosecution. At trial, Cheever raised a voluntary intoxication defense, offering expert testimony regarding his methamphetamine use. In rebuttal, the State sought to present testimony from the expert who had examined Cheever by the Federal District Court order. Defense counsel objected, arguing that since Cheever had not agreed to the examination, introduction of the testimony would violate the Fifth Amendment proscription against compelling an accused to testify against himself. The trial court allowed the testimony, and the jury found Cheever guilty and voted to impose a death sentence. The Kansas Supreme Court vacated the conviction and sentence, relying on Estelle v. Smith, 451 U.S. 454, in which this Court held that a court-ordered psychiatric examination violated a defendant’s Fifth Amendment rights when the defendant neither initiated the examination nor put his mental capacity in dispute. The court distinguished the holding of Buchanan v. Kentucky, 483 U.S. 402, that a State may introduce the results of such an examination for the limited purpose of rebutting a mental-status defense, on the basis that voluntary intoxication is not a mental disease or defect under Kansas law. Held: The rule of Buchanan, reaffirmed here, applies in this case to permit the prosecution to offer the rebuttal evidence at issue. . (a) In Buchanan, the prosecution presented evidence from a court-ordered evaluation to rebut the defendant’s affirmative defense of extreme emotional disturbance. This Court concluded that this rebuttal testimony did not offend the Fifth Amendment, holding that when a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal. Buchanan’s reasoning was not limited to the circumstance that the evaluation was requested jointly by the defense and the government. Nor did the case turn on whether state law referred to extreme emotional disturbance as an affirmative defense. . (b) The admission of rebuttal testimony under the rule of Buchanan harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not allow him to refuse to answer related questions on cross-examination. See Fitzpatrick v. United States, 178 U.S. 304, 315. Here, the prosecution elicited testimony from its expert only after Cheever offered expert testimony about his inability to form the requisite mens rea. Excluding this testimony would have undermined Buchanan and the core truth-seeking function of trial. . (c) This Court is not persuaded by the Kansas Supreme Court’s reasoning that Cheever did not waive his Fifth Amendment privilege because voluntary intoxication is not a mental disease or defect as a matter of state law. “Mental disease or defect” is not the salient phrase under this Court’s precedents, which use the much broader phrase “mental status,” Buchanan, 483 U. S., at 423. Mental-status defenses include those based on psychological expert evidence as to a defendant’s mens rea, mental capacity to commit the crime, or ability to premeditate. To the extent that the Kansas Supreme Court declined to apply Buchanan because Cheever’s intoxication was “temporary,” this Court’s precedents are again not so narrowly circumscribed, as evidenced by the fact that the courts where Buchanan was tried treated his extreme emotional disturbance as a “temporary” condition. . (d) This Court declines to address in the first instance Cheever’s contention that the prosecution’s use of the court-ordered psychiatric examination exceeded the rebuttal-purpose limit established by Buchanan, see 483 U. S., at 424. . 295 Kan. 229, 284 P.3d 1007, vacated and remanded. Sotomayor, J., delivered the opinion for a unanimous Court.

Pursuant to Federal Rule of Criminal Procedure 12.2(b), the District Court ordered petitioner Cheever to submit to a psychiatric evaluation by a forensic psychiatrist. The psychiatrist interviewed Cheever for roughly five and a half hours. Seven days into jury selection, Cheever became unable to continue; the court suspended the proceedings and later dismissed the case without prejudice. Meanwhile, this Court had reversed the Kansas Supreme Court and held that the Kansas death penalty statute was constitutional. A second federal prosecution never commenced, and Kansas then brought a second state prosecution. Cheever presented a voluntary-intoxication defense, arguing that his methamphetamine use had ren-dered him incapable of premeditation. The defense rested, and the State sought to present rebuttal testimony from the expert who had examined Cheever by order of the federal court. However, defense counsel objected on the ground that, because Welner had not voluntarily agreed to testify, his testimony would violate his Fifth Amendment privilege against self-incrimination. The court agreed and accepted the verdict for Cheever. The jury found Cheever guilty and rejected his argument that the State had violated the Fifth Amendment when it introduced, through Welner, statements that he had made during the court-ordered mental examination. Held: Where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court--ordered psychological examination for the limited purpose of rebutting the defendant's evidence. . (a) The rule of Buchanan v. Kentucky, 483 U. S. 402-424, is that where, as here, a defendant testsifies that he lacked a mental disorder to commit an offense, a prosecution may present psychiatric evidence in rebuttal. Any other rule would undermine the adversarial process, allowing a defendant to provide the jury, through an expert operating as proxy, with a one-sided and potentially inaccurate view of his mental state at the time of the alleged crime. P.. (b) Cheever did not waive his privilege when he allowed Welner to testify that Cheever made a choice to shoot, because the State permissibly followed where the defense led. Excluding this testimony would have undermined Buchanan and the core truth-seeking function of the trial. Neither the reasoning, nor Cheever's arguments, persuade this Court not to apply the settled rule Buchanan. Although Kansas law defines "mental disease or defect" narrowly, to exclude voluntary intoxication, that phrase is actually not the salient one under this Court, and, contrary to Cheever, the case did not turn on whether state law referred to extreme emotional disturbance as an affirmative defense. Moreover, although the State may present evidence obtained from a compelled psychiatric examination when a defendant presents evidence at trial that he lacks the requisite criminal intent due to mental illness or defect, Buchanan, supra, at 456. Mental-status defenses include those based on psychological expert evidence as to a defendant's mens rea, mental capacity to commit the crime, or ability to premeditate. Cf., e.g., Buchanan, at 408, 422. To the extent that the state courts declined to apply Buchanan because Cheever was intoxicated, the precedents are not so narrowly circumscribed as to suggest a constitutional ceiling on the scope of expert testimony that the prosecution may introduce in rebuttal, and hence States (and Congress) remain free to impose additional limitations on the scope of such rebuttal evidence in state and federal trials. However, while holding that testimony based on a state-ordered psychiatric evaluation is admissible only for a limited rebuttal purpose, Buchanan does not address whether Welner's testimony exceeded the scope permitted by the Fifth and State evidentiary rules. This Court declines to address this issue in the first instance, since that Court did not address the issue whether the State could effectively have rebutted the testimony of his expert by introducing testimony from experts who had not personally examined him. In fact, the reasoning misconstrues this Court's precedents, which, although holding that a Fifth Amendment Amendment limitation imposes limits on the State-to-Government ability to introduce rebuttal Evidence regarding a defendant-succeeding mental status, do not require that the Court address the question whether the state trial court did not violate that limitation, since, in this case, it did not do so. Cheever contends that the constitutional limits are not met by the State, since it exceeded the limits by describing the shooting from Cheever’s perspective, by insinuating that he was a personality disorder, and by discussing his alleged infatuation with criminals. The argument here is unpersuasive, since the prosecution here elicited testimony from its expert only after Cheever offered expert testimony about his in-ability to form the requisite mens rea. Thus, the trial court should not have excluded this testimony, since Excluding the testimony would undermine Buchanan and would have

2013_13-483

https://www.oyez.org/cases/2013/13-483

. Almost 50 years ago, this Court declared that citizens do not surrender their First Amendment rights by accepting public employment. Rather, the First Amendment protection of a public employee’s speech depends on a careful balance “between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968) . In Pickering, the Court struck the balance in favor of the public employee, extending First Amendment protection to a teacher who was fired after writing a letter to the editor of a local newspaper criticizing the school board that employed him. Today, we consider whether the First Amendment similarly protects a public employee who provided truthful sworn testimony, compelled by sub-poena, outside the course of his ordinary job responsibilities. We hold that it does. I In 2006, Central Alabama Community College (CACC) hired petitioner Edward Lane to be the Director of Community Intensive Training for Youth (CITY), a statewide program for underprivileged youth. CACC hired Lane on a probationary basis. In his capacity as Director, Lane was responsible for overseeing CITY’s day-to-day operations, hiring and firing employees, and making decisions with respect to the program’s finances. At the time of Lane’s appointment, CITY faced significant financial difficulties. That prompted Lane to conduct a comprehensive audit of the program’s expenses. The audit revealed that Suzanne Schmitz, an Alabama State Representative on CITY’s payroll, had not been reporting to her CITY office. After unfruitful discussions with Schmitz, Lane shared his finding with CACC’s president and its attorney. They warned him that firing Schmitz could have negative repercussions for him and CACC. Lane nonetheless contacted Schmitz again and in-structed her to show up to the Huntsville office to serveas a counselor. Schmitz refused; she responded that shewished to “ ‘continue to serve the CITY program in the same manner as [she had] in the past.’ ” Lane v. Central Ala. Community College, 523 Fed. Appx. 709, 710 (CA11 2013) (per curiam). Lane fired her shortly thereafter. Schmitz told another CITY employee, Charles Foley, that she intended to “ ‘get [Lane] back’ ” for firing her. 2012 WL 5289412, *1 (ND Ala., Oct. 18, 2012). She also said that if Lane ever requested money from the state legislature for the program, she would tell him, “ ‘[y]ou’re fired.’ ” Ibid. Schmitz’ termination drew the attention of many, including agents of the Federal Bureau of Investigation, which initiated an investigation into Schmitz’ employment with CITY. In November 2006, Lane testified before a federal grand jury about his reasons for firing Schmitz. In January 2008, the grand jury indicted Schmitz on four counts of mail fraud and four counts of theft concerning a program receiving federal funds. See United States v. Schmitz, 634 F. 3d 1247, 1256–1257 (CA11 2011). The indictment alleged that Schmitz had collected $177,251.82 in federal funds even though she performed “ ‘virtually no services,’ ” “ ‘generated virtually no work product,’ ” and “ ‘rarely even appeared for work at the CITY Program offices.’ ” Id., at 1260. It further alleged that Schmitz had submitted false statements concerning the hours she worked and the nature of the services she performed. Id., at 1257. Schmitz’ trial, which garnered extensive press coverage,[1] commenced in August 2008. Lane testified, under subpoena, regarding the events that led to his terminating Schmitz. The jury failed to reach a verdict. Roughly six months later, federal prosecutors retried Schmitz, and Lane testified once again. This time, the jury convicted Schmitz on three counts of mail fraud and four countsof theft concerning a program receiving federal funds. The District Court sentenced her to 30 months in prison and ordered her to pay $177,251.82 in restitution and forfeiture. Meanwhile, CITY continued to experience considerable budget shortfalls. In November 2008, Lane began reporting to respondent Steve Franks, who had become president of CACC in January 2008. Lane recommended that Franks consider layoffs to address the financial difficulties. In January 2009, Franks decided to terminate 29 probationary CITY employees, including Lane. Shortly thereafter, however, Franks rescinded all but 2 of the 29 terminations—those of Lane and one other employee— because of an “ambiguity in [those other employees’] probationary service.” Brief for Respondent Franks 11. Franks claims that he “did not rescind Lane’s termination . . . because he believed that Lane was in a fundamentally different category than the other employees: he was the director of the entire CITY program, and not simply an employee.” Ibid. In September 2009, CACC eliminated the CITY program and terminated the program’s remaining employees. Franks later retired, and respondent Susan Burrow, the current Acting President of CACC, replaced him while this case was pending before the Eleventh Circuit. In January 2011, Lane sued Franks in his individual and official capacities under Rev. Stat. §1979, 42 U. S. C. §1983, alleging that Franks had violated the First Amendment by firing him in retaliation for his testimony against Schmitz.[2] Lane sought damages from Franks in his individual capacity and sought equitable relief, including reinstatement, from Franks in his official capacity.[3] The District Court granted Franks’ motion for summary judgment. Although the court concluded that the record raised “genuine issues of material fact . . . concerning [Franks’] true motivation for terminating [Lane’s] employment,” 2012 WL 5289412, *6, it held that Franks was entitled to qualified immunity as to the damages claims because “a reasonable government official in [Franks’] position would not have had reason to believe that the Constitution protected [Lane’s] testimony,” id., *12. The District Court relied on Garcetti v. Ceballos, 547 U. S. 410 (2006) , which held that “ ‘when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment pur-poses.’ ” 2012 WL 5289412, *10 (quoting Garcetti, 547 U. S.,at 421). The court found no violation of clearly established law because Lane had “learned of the information that he testified about while working as Director at [CITY],” such that his “speech [could] still be considered as part of his official job duties and not made as a citizen on a matter of public concern.” 2012 WL 5289412, *10. The Eleventh Circuit affirmed. 523 Fed. Appx., at 710. Like the District Court, it relied extensively on Garcetti. It reasoned that, “[e]ven if an employee was not required to make the speech as part of his official duties, he enjoys no First Amendment protection if his speech ‘owes its existence to [the] employee’s professional responsibilities’ and is ‘a product that the “employer himself has commissioned or created.” ’ ” Id., at 711 (quoting Abdur-Rahman v. Walker, 567 F. 3d 1278, 1283 (CA11 2009)). The court concluded that Lane spoke as an employee and not as a citizen because he was acting pursuant to his official duties when he investigated Schmitz’ employment, spoke with Schmitz and CACC officials regarding the issue, and terminated Schmitz. 523 Fed. Appx., at 712. “That Lane testified about his official activities pursuant to a sub-poena and in the litigation context,” the court continued,“does not bring Lane’s speech within the protection of the First Amendment.” Ibid. The Eleventh Circuit also concluded that, “even if . . . a constitutional violation of Lane’s First Amendment rights occurred in these circumstances, Franks would be entitled to qualified immunity in his personal capacity” because the right at issue had not been clearly established. Id., at 711, n. 2. We granted certiorari, 571 U. S. __ (2014), to resolve discord among the Courts of Appeals as to whether public employees may be fired—or suffer other adverse employment consequences—for providing truthful subpoenaed testimony outside the course of their ordinary job responsibilities. Compare 523 Fed. Appx., at 712 (case below), with, e.g., Reilly v. Atlantic City, 532 F. 3d 216, 231 (CA3 2008). II Speech by citizens on matters of public concern lies at the heart of the First Amendment, which “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, 484 (1957) . This remains true when speech concerns information related to or learned through public employment. After all, public employees do not renounce their citizenship when they accept employment, and this Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights. See, e.g., Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 605 (1967) ; Pickering, 391 U. S., at 568; Connick v. Myers, 461 U. S. 138, 142 (1983) . There is considerable value, moreover, in encouraging, rather than inhibiting, speech by public employees. For “[g]overnment employees are often in the best position to know what ails the agencies for which they work.” Waters v. Churchill, 511 U. S. 661, 674 (1994) (plurality opinion). “The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.” San Diego v. Roe, 543 U. S. 77, 82 (2004) (per curiam). Our precedents have also acknowledged the government’s countervailing interest in controlling the operation of its workplaces. See, e.g., Pickering, 391 U. S., at 568. “Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.” Garcetti, 547 U. S., at 418. Pickering provides the framework for analyzing whether the employee’s interest or the government’s interest should prevail in cases where the government seeks to curtail the speech of its employees. It requires “balanc[ing] . . . the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U. S., at 568. In Pickering, the Court held that a teacher’s letter to the editor of a local news-paper concerning a school budget constituted speech on amatter of public concern. Id., at 571. And in balancing the employee’s interest in such speech against the government’s efficiency interest, the Court held that the publication of the letter did not “imped[e] the teacher’s proper performance of his daily duties in the classroom” or “interfer[e] with the regular operation of the schools generally.” Id., at 572–573. The Court therefore held that the teacher’s speech could not serve as the basis for his dismissal. Id., at 574. In Garcetti, we described a two-step inquiry into whether a public employee’s speech is entitled to protection: “The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” 547 U. S., at 418 (citations omitted). In describing the first step in this inquiry, Garcetti distinguished between employee speech and citizen speech. Whereas speech as a citizen may trigger protection, the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment pur-poses, and the Constitution does not insulate their communi-cations from employer discipline.” Id., at 421. Applying that rule to the facts before it, the Court found that an internal memorandum prepared by a prosecutor in the course of his ordinary job responsibilities constituted unprotected employee speech. Id., at 424. III Against this backdrop, we turn to the question pre-sented: whether the First Amendment protects a public employee who provides truthful sworn testimony, compelledby subpoena, outside the scope of his ordinary job responsibilities.[4] We hold that it does. A The first inquiry is whether the speech in question—Lane’s testimony at Schmitz’ trials—is speech as a citizen on a matter of public concern. It clearly is. 1 Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment. In rejecting Lane’s argument that his testimony was speech as a citizen, the Eleventh Circuit gave short shrift to the nature of sworn judicial statements and ignored the obligation borne by all witnesses testifying under oath. See 523 Fed. Appx., at 712 (finding immaterial the fact that Lane spoke “pursuant to a subpoena and in the litigation context”). Sworn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth. See, e.g., 18 U. S. C. §1623 (criminalizing false statements under oath in judicial proceedings); United States v. Mandujano, 425 U. S. 564, 576 (1976) (plurality opinion) (“Perjured testimony is an obvious and flagrant affront to the basic concept of judicial proceedings”). When the person testifying is a public employee, he may bear separate obligations to his employer—for example, an obligation not to show up to court dressed in an unprofessional manner. But any such obligations as an employee are distinct and independent from the obligation, as a citizen, to speak the truth. That independent obligation renders sworn testimony speech as a citizen and sets it apart from speech made purely in the capacity of an employee. In holding that Lane did not speak as a citizen whenhe testified, the Eleventh Circuit read Garcetti far too broadly. It reasoned that, because Lane learned of the sub-ject matter of his testimony in the course of his employment with CITY, Garcetti requires that his testimony be treated as the speech of an employee rather than that of a citizen. See 523 Fed. Appx., at 712. It does not. The sworn testimony in this case is far removed from the speech at issue in Garcetti—an internal memorandum prepared by a deputy district attorney for his supervisors recommending dismissal of a particular prosecution. The Garcetti Court held that such speech was made pursuant to the employee’s “official responsibilities” because “[w]hen [the employee] went to work and performed the tasks he was paid to perform, [he] acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean that his supervisors were prohib-ited from evaluating his performance.” 547 U. S., at 422, 424. But Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. The Garcetti Court made explicit that its holding did not turn on the fact that the memo at issue “concerned the subject matter of [the prosecutor’s] employment,” because “[t]he First Amendment protects some expressions related to the speaker’s job.” Id., at 421. In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. It bears emphasis that our precedents dating back to Pickering have recognized that speech by public employees on subject matter related to their employment holdsspecial value precisely because those employees gainknowledge of matters of public concern through their employment. In Pickering, for example, the Court observed that “[t]eachers are . . . the members of a commu-nity most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” 391 U. S., at 572; see also Garcetti, 547 U. S., at 421 (recognizing that “[t]he same is true of many other categories of public employees”). Most recently, in San Diego v. Roe, 543 U. S., at 80, the Court again observed that public employees “are uniquely qualified to comment” on “matters concerning government policies that are of interest to the public at large.” The importance of public employee speech is especially evident in the context of this case: a public corruption scandal. The United States, for example, represents that because “[t]he more than 1000 prosecutions for federal corruption offenses that are brought in a typical year . . . often depend on evidence about activities that government officials undertook while in office,” those prosecutions often “require testimony from other government employees.” Brief for United States as Amicus Curiae 20. It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs. Applying these principles, it is clear that Lane’s sworn testimony is speech as a citizen. 2 Lane’s testimony is also speech on a matter of public concern. Speech involves matters of public concern “when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’ or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ ” Snyder v. Phelps, 562 U. S. ___, ___ (2011) (slip op., at 6–7) (citation omitted). The inquiry turns on the “content, form, and context” of the speech. Connick, 461 U. S., at 147–148. The content of Lane’s testimony—corruption in a public program and misuse of state funds—obviously involves a matter of significant public concern. See, e.g., Garcetti, 547 U. S., at 425 (“Exposing governmental inefficiency and misconduct is a matter of considerable significance”). And the form and context of the speech—sworn testimony in a judicial proceeding—fortify that conclusion. “Unlike speech in other contexts, testimony under oath has the formality and gravity necessary to remind the witness that his or her statements will be the basis for official governmental action, action that often affects the rights and liberties of others.” United States v. Alvarez, 567 U. S. ___, ___ (2012) (slip op., at 8–9) (plurality opinion). * * * We hold, then, that Lane’s truthful sworn testimony at Schmitz’ criminal trials is speech as a citizen on a matter of public concern. B This does not settle the matter, however. A public employee’s sworn testimony is not categorically entitled to First Amendment protection simply because it is speech as a citizen on a matter of public concern. Under Pickering, if an employee speaks as a citizen on a matter of public concern, the next question is whether the government had “an adequate justification for treating the employee differently from any other member of the public” based on the government’s needs as an employer. Garcetti, 547 U. S., at 418. As discussed previously, we have recognized that government employers often have legitimate “interest[s] in the effective and efficient fulfillment of [their] responsibilities to the public,” including “ ‘promot[ing] efficiency and integrity in the discharge of official duties,’ ” and “ ‘maintain[ing] proper discipline in public service.’ ” Connick, 461 U. S., at 150–151. We have also cautioned, however, that “a stronger showing [of government interests] may be necessary if the employee’s speech more substantially involve[s] matters of public concern.” Id., at 152. Here, the employer’s side of the Pickering scale is entirely empty: Respondents do not assert, and cannot demonstrate, any government interest that tips the balance in their favor. There is no evidence, for example, that Lane’s testimony at Schmitz’ trials was false or erroneous or that Lane unnecessarily disclosed any sensitive, confidential, or privileged information while testifying.[5] In these circumstances, we conclude that Lane’s speech is entitled to protection under the First Amendment. The Eleventh Circuit erred in holding otherwise and dismissing Lane’s claim of retaliation on that basis. IV Respondent Franks argues that even if Lane’s testimony is protected under the First Amendment, the claims against him in his individual capacity should be dismissed on the basis of qualified immunity. We agree. Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at 12). Under this doctrine, courts may not award damages against a government official in his personal capacity unless “the official violated a statutory or constitutional right,” and “the right was ‘clearly established’ at the time of the challenged conduct.” Id., at ___ (slip op., at 3). The relevant question for qualified immunity purposes is this: Could Franks reasonably have believed, at the time he fired Lane, that a government employer could fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities? Eleventh Circuit precedent did not preclude Franks from reasonably holding that belief. And no decision of this Court was sufficiently clear to cast doubt on the controlling Eleventh Circuit precedent. In dismissing Lane’s claim, the Eleventh Circuit relied on its 1998 decision in Morris v. Crow, 142 F. 3d 1379 (per curiam). There, a deputy sheriff sued the sheriff and two other officials, alleging that he had been fired in retaliation for statements he made in an accident report and later giving deposition testimony about his investigation of a fatal car crash between another officer and a citizen. Id., at 1381. In his accident report, the plaintiff noted that the officer was driving more than 130 mph in a 50 mph zone, without using his emergency blue warning light. See ibid. The plaintiff later testified to these facts at a deposition in a wrongful death suit against the sheriff’s office. Ibid. His superiors later fired him. Ibid. The Eleventh Circuit, in a pre-Garcetti decision, concluded that the plaintiff’s deposition testimony was unprotected. It held that a public employee’s speech is protected only when it is “ ‘made primarily in the employee’s role as citizen,’ ” rather than “ ‘primarily in the role of employee.’ ” Morris, 142 F. 3d, at 1382. And it found the plaintiff’s deposition testimony to be speech as an em-ployee because it “reiterated the conclusions regardinghis observations of the accident” that he “generated in thenormal course of [his] duties.” Ibid. Critically, the court acknowledged—and was unmoved by—the fact that al-though the plaintiff had investigated the accident andprepared the report pursuant to his official duties, there was no “evidence that [he] gave deposition testimony for any reason other than in compliance with a subpoena to testify truthfully in the civil suit regarding the . . . accident.” Ibid. The court further reasoned that the speech could not “be characterized as an attempt to make public comment on sheriff’s office policies and procedures, the internal workings of the department, the quality of its employees or upon any issue at all.” Ibid. Lane argues that two other Eleventh Circuit precedents put Franks on notice that his conduct violated the First Amendment: Martinez v. Opa-Locka, 971 F. 2d 708 (1992) (per curiam), and Tindal v. Montgomery Cty. Comm’n, 32 F. 3d 1535 (1994). Martinez involved a public employee’s subpoenaed testimony before the Opa-Locka City Commission regarding her employer’s procurement practices. 971 F. 2d, at 710. The Eleventh Circuit held that her speech was protected, reasoning that it addressed a matter of public concern and that her interest in speaking freely was not outweighed by her employer’s interest in providing government services. Id., at 712. It held, further, that the relevant constitutional rules were so clearly established at the time that qualified immunity did not apply. Id., at 713. Tindal, decided two years after Martinez, involved a public employee’s subpoenaed testimony in her co-worker’s sexual harassment lawsuit. 32 F. 3d, at 1537–1538. The court again ruled in favor of the em-ployee. It held that the employee’s speech touched upona public concern and that her employer had not offered any evidence that the speech hindered operations. Id., at 1539–1540. Morris, Martinez, and Tindal represent the landscape of Eleventh Circuit precedent the parties rely on for qualified immunity purposes. If Martinez and Tindal were controlling in the Eleventh Circuit in 2009, we would agree with Lane that Franks could not reasonably have believed that it was lawful to fire Lane in retaliation for his testimony. But both cases must be read together with Morris, which reasoned—in declining to afford First Amendment protection—that the plaintiff’s decision to testify was motivated solely by his desire to comply with a subpoena. The same could be said of Lane’s decision to testify. Franks was thus entitled to rely on Morris when he fired Lane.[6] Lane argues that Morris is inapplicable because it distinguished Martinez, suggesting that Martinez survived Morris. See Morris, 142 F. 3d, at 1382–1383. But this debate over whether Martinez or Morris applies to Lane’s claim only highlights the dispositive point: At the time of Lane’s termination, Eleventh Circuit precedent did not provide clear notice that subpoenaed testimony concerning information acquired through public employment is speech of a citizen entitled to First Amendment protection. At best, Lane can demonstrate only a discrepancy in Eleventh Circuit precedent, which is insufficient to defeat the defense of qualified immunity. Finally, Lane argues that decisions of the Third and Seventh Circuits put Franks on notice that his firing of Lane was unconstitutional. See Reilly, 532 F. 3d, at 231 (CA3) (truthful testimony in court is citizen speech protected by the First Amendment); Morales v. Jones, 494 F. 3d 590, 598 (CA7 2007) (similar). But, as the court below acknowledged, those precedents were in direct conflict with Eleventh Circuit precedent. See 523 Fed. Appx., at 712, n. 3. There is no doubt that the Eleventh Circuit incorrectly concluded that Lane’s testimony was not entitled to First Amendment protection. But because the question was not “beyond debate” at the time Franks acted, al-Kidd, 563 U. S., at ___ (slip op., at 9), Franks is entitled to qualified immunity. V Lane’s speech is entitled to First Amendment protection, but because respondent Franks is entitled to qualified immunity, we affirm the judgment of the Eleventh Circuit as to the claims against Franks in his individual capacity. Our decision does not resolve, however, the claims against Burrow—initially brought against Franks when he served as President of CACC—in her official capacity. Although the District Court dismissed those claims for prospective relief as barred by the Eleventh Amendment, the Eleventh Circuit declined to consider that question on appeal, see 523 Fed. Appx., at 711 (“Because Lane has failed to establish a prima facie case of retaliation, we do not decide about Franks’ defense of sovereign immunity”), and the parties have not asked us to consider it now. We therefore reverse the judgment of the Eleventh Circuit as to those claims and remand for further proceedings. * * * For the foregoing reasons, the judgment of the United States Court of Appeals for the Eleventh Circuit is affirmed in part and reversed in part, and the case is remandedfor further proceedings consistent with this opinion. It is so ordered.Notes 1 See, Lawmaker Faces Fraud Charge in June, Montgomery Advertiser, May 6, 2008, p. 1B; Johnson, State Lawmaker’s Fraud Trial Starts Today, Montgomery Advertiser, Aug. 18, 2008, p. 1B; Faulk, Schmitz Testifies in Her Defense: Says State Job was Legitimate, Birmingham News, Feb. 20, 2009, p. 1A; Faulk, Schmitz Convicted, Loses her State Seat, Birmingham News, Feb. 25, 2009, p. 1A. 2 Lane also brought claims against CACC, as well as claims under a state whistleblower statute, Ala. Code §36–26A–3 (2013), and . Those claims are not at issue here. 3 Because Burrow replaced Franks as President of CACC during the pendency of this lawsuit, the claims originally filed against Franks in his official capacity are now against Burrow. 4 It is undisputed that Lane’s ordinary job responsibilities did not include testifying in court proceedings. See v. , 523 Fed. Appx. 709, 712 (CA11 2013). For that reason, Lane asked the Court to decide only whether truthful sworn testimony that is not a part of an employee’s ordinary job responsibilities is citizen speech on a matter of public concern. Pet. for Cert. i. We accordingly need not address in this case whether truthful sworn testimony would constitute citizen speech under when given as part of a public employee’s ordinary job duties, and express no opinion on the matter today. 5 Of course, quite apart from balancing, wrongdoing that an employee admits to while testifying may be a valid basis for termination or other discipline. 6 There is another reason undermines and . In and , the Eleventh Circuit asked only whether the speech at issue addressed a matter of public concern. , which appeared to anticipate , asked both whether the speech at issue was speech of an employee (and not a citizen) and whether it touched upon a matter of public concern. In this respect, one could read as cabining and .

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus LANE v. FRANKS et al. certiorari to the united states court of appeals for the eleventh circuit No. 13–483. Argued April 28, 2014—Decided June 19, 2014 As Director of Community Intensive Training for Youth (CITY), a program for underprivileged youth operated by Central Alabama Community College (CACC), petitioner Edward Lane conducted an audit of the program’s expenses and discovered that Suzanne Schmitz, an Alabama State Representative on CITY’s payroll, had not been reporting for work. Lane eventually terminated Schmitz’ employment. Shortly thereafter, federal authorities indicted Schmitz on charges of mail fraud and theft concerning a program receiving federal funds. Lane testified, under subpoena, regarding the events that led to his terminating Schmitz. Schmitz was convicted and sentenced to 30 months in prison. Meanwhile, CITY was experiencing significant budget shortfalls. Respondent Franks, then CACC’s president, terminated Lane along with 28 other employees in a claimed effort to address the financial difficulties. A few days later, however, Franks rescinded all but 2 of the 29 terminations—those of Lane and one other employee. Lane sued Franks in his individual and official capacities under 42 U. S. C. §1983, alleging that Franks had violated the First Amendment by firing him in retaliation for testifying against Schmitz. The District Court granted Franks’ motion for summary judgment, holding that the individual-capacity claims were barred by qualified immunity and the official-capacity claims were barred by the Eleventh Amendment. The Eleventh Circuit affirmed, holding that Lane’s testimony was not entitled to First Amendment protection. It reasoned that Lane spoke as an employee and not as a citizen because he acted pursuant to his official duties when he investigated and terminated Schmitz’ employment. Held: 1. Lane’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection. . (a) Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, requires balancing “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Under the first step of the Pickering analysis, if the speech is made pursuant to the employee’s ordinary job duties, then the employee is not speaking as a citizen for First Amendment purposes, and the inquiry ends. Garcetti v. Ceballos, 547 U.S. 410, 421. But if the “employee spoke as a citizen on a matter of public concern,” the inquiry turns to “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Id., at 418. . (b) Lane’s testimony is speech as a citizen on a matter of public concern. . (1) Sworn testimony in judicial proceedings is a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth. That obligation is distinct and independent from any separate obligations a testifying public employee might have to his employer. The Eleventh Circuit read Garcetti far too broadly in holding that Lane did not speak as a citizen when he testified simply because he learned of the subject matter of that testimony in the course of his employment. Garcetti said nothing about speech that relates to public employment or concerns information learned in the course of that employment. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. Indeed, speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment. . (2) Whether speech is a matter of public concern turns on the “content, form, and context” of the speech. Connick v. Myers, 461 U.S. 138, 147–148. Here, corruption in a public program and misuse of state funds obviously involve matters of significant public concern. See Garcetti, 547 U. S., at 425. And the form and context of the speech—sworn testimony in a judicial proceeding—fortify that conclusion. See United States v. Alvarez, 567 U. S. ___, ___. . (c) Turning to Pickering’s second step, the employer’s side of the scale is entirely empty. Respondents do not assert, and cannot demonstrate, any government interest that tips the balance in their favor—for instance, evidence that Lane’s testimony was false or erro-neous or that Lane unnecessarily disclosed sensitive, confidential, or privileged information while testifying. . 2. Franks is entitled to qualified immunity for the claims against him in his individual capacity. The question here is whether Franks reasonably could have believed that, when he fired Lane, a government employer could fire an employee because of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities. See Ashcroft v. al-Kidd, 563 U. S. ___, ___. At the relevant time, Eleventh Circuit precedent did not preclude Franks from holding that belief, and no decision of this Court was sufficiently clear to cast doubt on controlling Circuit precedent. Any discrepancies in Eleventh Circuit precedent only serve to highlight the dispositive point that the question was not beyond debate at the time Franks acted. . 3. The Eleventh Circuit declined to consider the District Court’s dismissal of the claims against respondent Burrow in her official capacity as CACC’s acting president, and the parties have not asked this Court to consider them here. The judgment of the Eleventh Circuit as to those claims is reversed, and the case is remanded for further proceedings. P. 17. 523 Fed. Appx. 709, affirmed in part, reversed in part, and remanded. Sotomayor, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion, in which Scalia and Alito, JJ., joined.

Petitioner, the Director of a statewide program for underprivileged youth, was responsible for overseeing the program, hiring and firing employees, and making decisions with respect to the program's finances. At the time of petitioner's appointment, the program faced significant financial difficulties. That prompted petitioner to conduct a comprehensive audit of the program. The audit revealed that a State Representative on petitioner's payroll had not been reporting to his City Office, and that petitioner, who had shared the finding with CACC officials, warned him that firing the employee could have negative repercussions for petitioner and CACC. Petitioner nonetheless contacted the employee and in-structed her to show up to the office to serveas a counselor. The employee refused, and petitioner fired her shortly thereafter. The Federal Bureau of Investigation (FBI) then initiated an investigation into petitioner's employment. In January, petitioner testified before a federal grand jury about his reasons for firing petitioner. The grand jury indicted petitioner for mail fraud and theft concerning a program receiving federal funds. The indictment alleged that petitioner had collected $177,251.82 in federal funds even though she performed virtually no services, had no work product, and had submitted false statements concerning the hours she worked and the nature of the services she performed. The jury found petitioner guilty and sentenced Schmitz to prison. The District Court then ordered petitioner to pay restitution and forfeiture of the funds. However, the Court of Appeals reversed, holding that petitioner was entitled to qualified immunity as to the damages claims because a reasonable government official in his position would not have had reason to believe that the Constitution protected his testimony. The court relied on Garcetti v. Ceballos, 547 U. S. 410, which held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment pur-poses. Held: 1. The First Amendment protects a public employee who provides truthful sworn testimony, compelled by sub-poena, outside the course of his ordinary job responsibilities. See, e.g., Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 563. . (a) The mere fact that a citizen's speech concerns information acquired by virtue of his public employment does not transform that speech into employee, rather than citizen, speech. Here, the critical question is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties. Cf. Pickering, supra. Although the employer on respondent's side of the Pickering scale is entirely empty, respondents do not assert, and cannot demonstrate, any government interest that tips the balance in their favor. There is no evidence, for example, that petitioner's testimony at petitioner's trials was false or erroneous or that he unnecessarily disclosed any sensitive, confidential, or privileged information while testifying. Moreover, the Eleventh Circuit erred in holding otherwise and dismissing petitioner's claim of retaliation on the basis of qualified immunity. Because petitioner replaced Franks as President of CACC during the pendency of the lawsuit, the claims originally filed against him in his official capacity are now against Burrow. Petitioner asked the Court to decide only whether truthful oath testimony that is not a part of petitioner employees' ordinary job responsibilities is citizen speech on a matter of public concern. This question was not addressed at the time petitioner fired him. In fact, it appeared that, in declining to afford First Amendment protection, petitioner reasoned that the plaintiff's decision to testify was motivated solely by his desire to comply with a subpoena, the same could be said of petitioner, and thus petitioner was thus entitled to rely on Morris when he fired Lane. Morris, supra, is inapplicable because it distinguished Martinez v. Opa-Locka, 971 F. 2d 708 (per curiam), and Tindal v. Montgomery Cty. Comm'n, 32 F. 3d 1535 (CA11 2011), which reasoned that petitioner could not reasonably have believed that it was lawful to fire Lane in retaliation for his testimony, and which, at the best, put him on notice that his testimony was not protected by the First Amendment. Finally, the court did not provide sufficient notice to petitioner that his speech was constitutionally protected. At the best point, petitioner did not defeat his First Amendment claim by factful debate on the point of disqualifying his employment by firing him, and at the worst, he did not demonstrate a qualified defense of First Amendment speech at a time when First Amendment notice was sufficient to defeat that claim. Furthermore, the question whether petitioner had acquired qualified immunity through his public employee testimony was insufficient to defeat his constitutional defense, since, at that time, Eleventh Circuits v. Morales, 583 F.2d 1383, and Morris v. Jones, 590 F.3d 1389, were in direct conflict with Eleventh

2013_12-5196

https://www.oyez.org/cases/2013/12-5196

. The Bankruptcy Code provides that a debtor may exempt certain assets from the bankruptcy estate. It further provides that exempt assets generally are not liable for any expenses associated with administering the estate. In this case, we consider whether a bankruptcy court nonetheless may order that a debtor’s exempt assets be used to pay administrative expenses incurred as a result of the debtor’s misconduct. I. Background A Chapter 7 of the Bankruptcy Code gives an insolvent debtor the opportunity to discharge his debts by liquidating his assets to pay his creditors. 11 U. S. C. §§704(a)(1), 726, 727. The filing of a bankruptcy petition under Chapter 7 creates a bankruptcy “estate” generally comprising all of the debtor’s property. §541(a)(1). The estate is placed under the control of a trustee, who is responsible for managing liquidation of the estate’s assets and distribution of the proceeds. §704(a)(1). The Code authorizes the debtor to “exempt,” however, certain kinds of property from the estate, enabling him to retain those assets postbankruptcy. §522(b)(1). Except in particular situations specified in the Code, exempt property “is not liable” for the payment of “any [prepetition] debt” or “any administrative expense.” §522(c), (k). Section 522(d) of the Code provides a number of exemptions unless they are specifically prohibited by state law. §522(b)(2), (d). One, commonly known as the “homestead exemption,” protects up to $22,975 in equity in the debtor’s residence. §522(d)(1) and note following §522; see Owen v. Owen, 500 U. S. 305, 310 (1991) . The debtor may elect, however, to forgo the §522(d) exemptions and instead claim whatever exemptions are available under applicable state or local law. §522(b)(3)(A). Some States provide homestead exemptions that are more generous than the federal exemption; some provide less generous versions; but nearly every State provides some type of homestead exemption. See López, State Homestead Exemptions and Bankruptcy Law: Is It Time for Congress To Close the Loophole? 7 Rutgers Bus. L. J. 143, 149–165 (2010) (listing state exemptions). B Petitioner, Stephen Law, filed for Chapter 7 bankruptcy in 2004, and respondent, Alfred H. Siegel, was appointed to serve as trustee. The estate’s only significant asset was Law’s house in Hacienda Heights, California. On a schedule filed with the Bankruptcy Court, Law valued the house at $363,348 and claimed that $75,000 of its value was covered by California’s homestead exemption. See Cal. Civ. Proc. Code Ann. §704.730(a)(1) (West Supp. 2014). He also reported that the house was subject to two voluntary liens: a note and deed of trust for $147,156.52 in favor of Washington Mutual Bank, and a second note and deed of trust for $156,929.04 in favor of “Lin’s Mortgage & Associates.” Law thus represented that there was no equity in the house that could be recovered for his other creditors, because the sum of the two liens exceeded the house’s nonexempt value. If Law’s representations had been accurate, he presumably would have been able to retain the house, since Siegel would have had no reason to pursue its sale. Instead, a few months after Law’s petition was filed, Siegel initiated an adversary proceeding alleging that the lien in favor of “Lin’s Mortgage & Associates” was fraudulent. The deed of trust supporting that lien had been recorded by Law in 1999 and reflected a debt to someone named “Lili Lin.” Not one but two individuals claiming to be Lili Lin ultimately responded to Siegel’s complaint. One, Lili Lin of Artesia, California, was a former acquaintance of Law’s who denied ever having loaned him money and described his repeated efforts to involve her in various sham transactions relating to the disputed deed of trust. That Lili Lin promptly entered into a stipulated judgment disclaiming any interest in the house. But that was not the end of the matter, because the second “Lili Lin” claimed to be the true beneficiary of the disputed deed of trust. Over the next five years, this “Lili Lin” managed—despite supposedly living in China and speaking no English—to engage in extensive and costly litigation, including several appeals, contesting the avoidance of the deed of trust and Siegel’s subsequent sale of the house. Finally, in 2009, the Bankruptcy Court entered an order concluding that “no person named Lili Lin ever made a loan to [Law] in exchange for the disputed deed of trust.” In re Law, 401 B. R. 447, 453 (Bkrtcy. Ct. CD Cal.). The court found that “the loan was a fiction, meant to preserve [Law’s] equity in his residence beyond what he was entitled to exempt” by perpetrating “a fraud on his creditors and the court.” Ibid. With regard to the second “Lili Lin,” the court declared itself “unpersuaded that Lili Lin of China signed or approved any declaration or pleading purporting to come from her.” Ibid. Rather, it said, the “most plausible conclusion” was that Law himself had “authored, signed, and filed some or all of these papers.” Ibid. It also found that Law had submitted false evidence “in an effort to persuade the court that Lili Lin of China—rather than Lili Lin of Artesia—was the true holder of the lien on his residence.” Id., at 452. The court determined that Siegel had incurred more than $500,000 in attorney’s fees overcoming Law’s fraudulent misrepresentations. It therefore granted Siegel’s motion to “surcharge” the entirety of Law’s $75,000 homestead exemption, making those funds available to defray Siegel’s attorney’s fees. The Ninth Circuit Bankruptcy Appellate Panel affirmed. BAP No. CC–09–1077–PaMkH, 2009 WL 7751415 (Oct. 22, 2009) ( per curiam). It held that the Bankruptcy Court’s factual findings regarding Law’s fraud were not clearly erroneous and that the court had not abused its discretion by surcharging Law’s exempt assets. It explained that in Latman v. Burdette, 366 F. 3d 774 (2004), the Ninth Circuit had recognized a bankruptcy court’s power to “equitably surcharge a debtor’s statutory ex-emptions” in exceptional circumstances, such as “when a debtor engages in inequitable or fraudulent conduct.” 2009 WL 7751415, *5, *7. The Bankruptcy Appellate Panel acknowledged that the Tenth Circuit had disagreed with Latman, see In re Scrivner, 535 F. 3d 1258, 1263–1265 (2008), but the panel affirmed that Latman was correct. 2009 WL 7751415, *7, n. 10. Judge Markell filed a concurring opinion agreeing with the panel’s application of Latman but questioning “whether Latman remains good policy.” 2009 WL 7751415, *10. The Ninth Circuit affirmed. In re Law, 435 Fed. Appx. 697 (2011) ( per curiam). It held that the surcharge was proper because it was “calculated to compensate the estate for the actual monetary costs imposed by the debtor’s misconduct, and was warranted to protect the integrity of the bankruptcy process.” Id., at 698. We granted certiorari. 570 U. S. ___ (2013). II. Analysis A A bankruptcy court has statutory authority to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of” the Bankruptcy Code. 11 U. S. C. §105(a). And it may also possess “inherent power . . . to sanction ‘abusive litigation practices.’ ” Marrama v. Citizens Bank of Mass., 549 U. S. 365 –376 (2007). But in exercising those statutory and inherent powers, a bankruptcy court may not contravene specific statutory provisions. It is hornbook law that §105(a) “does not allow the bankruptcy court to override explicit mandates of other sections of the Bankruptcy Code.” 2 Collier on Bankruptcy ¶105.01[2], p. 105–6 (16th ed. 2013). Section 105(a) confers authority to “carry out” the provisions of the Code, but it is quite impossible to do that by taking action that the Code prohibits. That is simply an application of the axiom that a statute’s general permission to take actions of a certain type must yield to a specific prohibition found elsewhere. See Morton v. Mancari, 417 U. S. 535 –551 (1974); D. Ginsberg & Sons, Inc. v. Popkin, 285 U. S. 204 –208 (1932).[1] Courts’ inherent sanctioning powers are likewise subordinate to valid statutory directives and prohibitions. Degen v. United States, 517 U. S. 820, 823 (1996) ; Chambers v. NASCO, Inc., 501 U. S. 32, 47 (1991) . We have long held that “whatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of” the Bankruptcy Code. Norwest Bank Worthington v. Ahlers, 485 U. S. 197, 206 (1988) ; see, e.g., Raleigh v. Illinois Dept. of Revenue, 530 U. S. 15 –25 (2000); United States v. Noland, 517 U. S. 535, 543 (1996) ; SEC v. United States Realty & Improvement Co., 310 U. S. 434, 455 (1940) . Thus, the Bankruptcy Court’s “surcharge” was unauthorized if it contravened a specific provision of the Code. We conclude that it did. Section 522 (by reference to California law) entitled Law to exempt $75,000 of equity in his home from the bankruptcy estate. §522(b)(3)(A). And it made that $75,000 “not liable for payment of any administrative expense.” §522(k).[2] The reasonable attorney’s fees Siegel incurred defeating the “Lili Lin” lien were indubitably an administrative expense, as a short march through a few statutory cross-references makes plain: Section 503(b)(2) provides that administrative expenses include “compensation . . . awarded under” §330(a); §330(a)(1) authorizes “reasonable compensation for actual, necessary services rendered” by a “professional person employed under” §327; and §327(a) authorizes the trustee to “employ one or more attorneys . . . to represent or assist the trustee in carrying out the trustee’s duties under this title.” Siegel argues that even though attorney’s fees incurred responding to a debtor’s fraud qualify as “administrative expenses” for purposes of determining the trustee’s right to reimbursement under §503(b), they do not so qualify for purposes of §522(k); but he gives us no reason to depart from the “ ‘normal rule of statutory construction’ ” that words repeated in different parts of the same statute generally have the same meaning. See Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 342 (1994) (quoting Sorenson v. Secretary of Treasury, 475 U. S. 851, 860 (1986) ). The Bankruptcy Court thus violated §522’s express terms when it ordered that the $75,000 protected by Law’s homestead exemption be made available to pay Siegel’s attorney’s fees, an administrative expense. In doing so, the court exceeded the limits of its authority under §105(a) and its inherent powers. B Siegel does not dispute the premise that a bankruptcy court’s §105(a) and inherent powers may not be exercised in contravention of the Code. Instead, his main argument is that the Bankruptcy Court’s surcharge did not contravene §522. That statute, Siegel contends, “establish[es] the procedure by which a debtor may seek to claim exemptions” but “contains no directive requiring [courts] to allow [an exemption] regardless of the circumstances.” Brief for Respondent 35. Thus, he says, recognition of an equitable power in the Bankruptcy Court to deny an exemption by “surcharging” the exempt property in response to the debtor’s misconduct can coexist comfortably with §522. The United States, appearing in support of Siegel, agrees, arguing that §522 “neither gives debtors an absolute right to retain exempt property nor limits a court’s authority to impose an equitable surcharge on such property.” Brief for United States as Amicus Curiae 23. Insofar as Siegel and the United States equate the Bankruptcy Court’s surcharge with an outright denial of Law’s homestead exemption, their arguments founder upon this case’s procedural history. The Bankruptcy Appellate Panel stated that because no one “timely oppose[d] [Law]’s homestead exemption claim,” the exemption “became final” before the Bankruptcy Court imposed the surcharge. 2009 WL 7751415, at *2. We have held that a trustee’s failure to make a timely objection prevents him from challenging an exemption. Taylor v. Freeland & Kronz, 503 U. S. 638 –644 (1992). But even assuming the Bankruptcy Court could have revisited Law’s entitlement to the exemption, §522 does not give courts discretion to grant or withhold exemptions based on whatever considerations they deem appropriate. Rather, the statute exhaustively specifies the criteria that will render property exempt. See §522(b), (d). Siegel insists that because §522(b) says that the debtor “may exempt” certain property, rather than that he “shall be entitled” to do so, the court retains discretion to grant or deny exemptions even when the statutory criteria are met. But the subject of “may exempt” in §522(b) is the debtor, not the court, so it is the debtor in whom the statute vests discretion. A debtor need not invoke an exemption to which the statute entitles him; but if he does, the court may not refuse to honor the exemption absent a valid statutory basis for doing so. Moreover, §522 sets forth a number of carefully calibrated exceptions and limitations, some of which relate to the debtor’s misconduct. For example, §522(c) makes exempt property liable for certain kinds of prepetition debts, including debts arising from tax fraud, fraud in connection with student loans, and other specified types of wrongdoing. Section 522(o) prevents a debtor from claiming a homestead exemption to the extent he acquired the homestead with nonexempt property in the previous 10 years “with the intent to hinder, delay, or defraud a creditor.” And §522(q) caps a debtor’s homestead exemption at approximately $150,000 (but does not eliminate it en-tirely) where the debtor has been convicted of a felony that shows “that the filing of the case was an abuse of the provisions of” the Code, or where the debtor owes a debt arising from specified wrongful acts—such as securities fraud, civil violations of the Racketeer Influenced and Corrupt Organizations Act, or “any criminal act, intentional tort, or willful or reckless misconduct that caused serious physical injury or death to another individualin the preceding 5 years.” §522(q) and note following§522. The Code’s meticulous—not to say mind-numbingly detailed—enumeration of exemptions and exceptions to those exemptions confirms that courts are not authorized to create additional exceptions. See Hillman v. Maretta, 569 U. S. ___, ___ (2013) (slip op., at 12); TRW Inc. v. Andrews, 534 U. S. 19 –29 (2001). Siegel points out that a handful of courts have claimed authority to disallow an exemption (or to bar a debtor from amending his schedules to claim an exemption, which is much the same thing) based on the debtor’s fraudulent concealment of the asset alleged to be exempt. See, e.g., In re Yonikus, 996 F. 2d 866, 872–873 (CA7 1993); In re Doan, 672 F. 2d 831, 833 (CA11 1982) ( per curiam); Stewart v. Ganey, 116 F. 2d 1010, 1011 (CA5 1940). He suggests that those decisions reflect a general, equitable power in bankruptcy courts to deny exemptions based on a debtor’s bad-faith conduct. For the reasons we have given, the Bankruptcy Code admits no such power. It is of course true that when a debtor claims a state-created exemption, the exemption’s scope is determined by state law, which may provide that certain types of debtor misconduct warrant denial of the exemption. E.g., In re Sholdan, 217 F. 3d 1006, 1008 (CA8 2000); see 4 Collier on Bankruptcy ¶522.08[1]–[2], at 522–45 to 522–47. Some of the early decisions on which Siegel relies, and which the Fifth Circuit cited in Stewart, are instances in which federal courts applied state law to disallow state-created exemptions. See In re Denson, 195 F. 857, 858 (ND Ala. 1912); Cowan v. Burchfield, 180 F. 614, 619 (ND Ala. 1910); In re Ansley Bros., 153 F. 983, 984 (EDNC 1907). But federal law provides no authority for bankruptcy courts to deny an exemption on a ground not specified in the Code. C Our decision in Marrama v. Citizens Bank, on which Siegel and the United States heavily rely, does not point toward a different result. The question there was whether a debtor’s bad-faith conduct was a valid basis for a bankruptcy court to refuse to convert the debtor’s bankruptcy from a liquidation under Chapter 7 to a reorganization under Chapter 13. Although §706(a) of the Code gave the debtor a right to convert the case, §706(d) “expressly conditioned” that right on the debtor’s “ability to qualify as a ‘debtor’ under Chapter 13.” 549 U. S., at 372. And §1307(c) provided that a proceeding under Chapter 13 could be dismissed or converted to a Chapter 7 proceeding “for cause,” which the Court interpreted to authorize dismissal or conversion for bad-faith conduct. In light of §1307(c), the Court held that the debtor’s bad faith could stop him from qualifying as a debtor under Chapter 13, thus preventing him from satisfying §706(d)’s express condition on conversion. Id., at 372–373. That holding has no relevance here, since no one suggests that Law failed to satisfy any express statutory condition on his claiming of the homestead exemption. True, the Court in Marrama also opined that the Bankruptcy Court’s refusal to convert the case was authorized under §105(a) and might have been authorized under the court’s inherent powers. Id., at 375–376. But even that dictum does not support Siegel’s position. In Marrama, the Court reasoned that if the case had been converted to Chapter 13, §1307(c) would have required it to be either dismissed or reconverted to Chapter 7 in light of the debtor’s bad faith. Therefore, the Court suggested, even if the Bankruptcy Court’s refusal to convert the case had not been expressly authorized by §706(d), that action could have been justified as a way of providing a “prompt, rather than a delayed, ruling on [the debtor’s] unmeritorious at-tempt to qualify” under §1307(c). Id., at 376. At most, Marrama’s dictum suggests that in some circumstances a bankruptcy court may be authorized to dispense with futile procedural niceties in order to reach more expeditiously an end result required by the Code. Marrama most certainly did not endorse, even in dictum, the view that equitable considerations permit a bankruptcy court to contravene express provisions of the Code. D We acknowledge that our ruling forces Siegel to shoulder a heavy financial burden resulting from Law’s egregious misconduct, and that it may produce inequitable results for trustees and creditors in other cases. We have recognized, however, that in crafting the provisions of §522, “Congress balanced the difficult choices that exemption limits impose on debtors with the economic harm that exemptions visit on creditors.” Schwab v. Reilly, 560 U. S. 770, 791 (2010) . The same can be said of the limits imposed on recovery of administrative expenses by trustees. For the reasons we have explained, it is not for courts to alter the balance struck by the statute. Cf. Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U. S. 365 –377 (1990). * * * Our decision today does not denude bankruptcy courts of the essential “authority to respond to debtor misconduct with meaningful sanctions.” Brief for United States as Amicus Curiae 17. There is ample authority to deny the dishonest debtor a discharge. See §727(a)(2)–(6). (That sanction lacks bite here, since by reason of a postpetition settlement between Siegel and Law’s major creditor, Law has no debts left to discharge; but that will not often be the case.) In addition, Federal Rule of Bankruptcy Pro-cedure 9011—bankruptcy’s analogue to Civil Rule 11—authorizes the court to impose sanctions for bad-faith litigation conduct, which may include “an order directing payment. . . of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation.” Fed. Rule Bkrtcy. Proc. 9011(c)(2). The court may also possess further sanctioning authority under either §105(a) or its inherent powers. Cf. Chambers, 501 U. S., at 45–49. And because it arises postpetition, a bankruptcy court’s monetary sanction survives the bankruptcy case and is thereafter enforceable through the normal procedures for collecting money judgments. See §727(b). Fraudulent conduct in a bankruptcy case may also subject a debtor to criminal prosecution under 18 U. S. C. §152, which carries a maximum penalty of five years’ imprisonment. But whatever other sanctions a bankruptcy court may impose on a dishonest debtor, it may not contravene express provisions of the Bankruptcy Code by ordering that the debtor’s exempt property be used to pay debts and expenses for which that property is not liable under the Code. 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.Notes 1 The second sentence of §105(a) adds little to the analysis. It states: “No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.” Even if the “abuse of process” language were deemed to confer additional authority beyond that conferred by the first sentence (which is doubtful), that general authority would also be limited by more specific provisions of the Code. 2 The statute’s general rule that exempt assets are not liable foradministrative expenses is subject to two narrow exceptions, both per-taining to the use of exempt assets to pay expenses associated with the avoidance of certain voidable transfers of exempt property. §522(k)(1)–(2). Neither of those exceptions is relevant here.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus LAW v. SIEGEL, CHAPTER 7 TRUSTEE certiorari to the united states court of appeals for the ninth circuit No. 12–5196. Argued January 13, 2014—Decided March 4, 2014 Petitioner Law filed for Chapter 7 bankruptcy. He valued his California home at $363,348, claiming that $75,000 of that value was covered by California’s homestead exemption and thus was exempt from the bankruptcy estate. See 11 U. S. C. §522(b)(3)(A). He also claimed that the sum of two voluntary liens—one of which was in favor of “Lin’s Mortgage & Associates”—exceeded the home’s nonexempt value, leaving no equity recoverable for his other creditors. Respondent Siegel, the bankruptcy estate trustee, challenged the “Lin” lien in an adversary proceeding, but protracted and expensive litigation ensued when a supposed “Lili Lin” in China claimed to be the beneficiary of Law’s deed of trust. Ultimately, the Bankruptcy Court concluded that the loan was a fiction created by Law to preserve his equity in the house. It thus granted Siegel’s motion to “surcharge” Law’s $75,000 homestead exemption, making those funds available to defray attorney’s fees incurred by Siegel in overcoming Law’s fraudulent misrepresentations. The Ninth Circuit Bankruptcy Appellate Panel and the Ninth Circuit affirmed. Held: The Bankruptcy Court exceeded the limits of its authority when it ordered that the $75,000 protected by Law’s homestead exemption be made available to pay Siegel’s attorney’s fees. . (a) A bankruptcy court may not exercise its authority to “carry out” the provisions of the Code, 11 U. S. C. §105(a), or its “inherent power . . . to sanction ‘abusive litigation practices,’ ” Marrama v. Citizens Bank of Mass., 549 U.S. 365, 375–376, by taking action prohibited elsewhere in the Code. Here, the Bankruptcy Court’s “surcharge” contravened §522, which (by reference to California law) entitled Law to exempt $75,000 of equity in his home from the bankruptcy estate, §522(b)(3)(A), and which made that $75,000 “not liable for payment of any administrative expense,” §522(k), including attorney’s fees, see §503(b)(2). The surcharge thus exceeded the limits of both the court’s authority under §105(a) and its inherent powers. . (b) Siegel argues that an equitable power to deny an exemption by “surcharging” exempt property in response to a debtor’s misconduct can coexist with §522. But insofar as that argument equates the surcharge with an outright denial of Law’s homestead exemption, it founders on this case’s procedural history. The Bankruptcy Appellate Panel recognized that because no one timely objected to the homestead exemption, it became final before the surcharge was imposed. And a trustee who fails to make a timely objection cannot challenge an exemption. Taylor v. Freeland & Kronz, 503 U.S. 638, 643–644. Assuming the Bankruptcy Court could have revisited Law’s entitlement to the exemption, §522 specifies the criteria that render property exempt, and a court may not refuse to honor a debtor’s invocation of an exemption without a valid statutory basis. Federal courts may apply state law to disallow state-created exemptions, but federal law itself provides no authority for bankruptcy courts to deny an exemption on a ground not specified in the Code. . (c) Neither the holding of Marrama v. Citizens Bank nor its dictum points toward a different result. There, the debtor’s bad faith kept him from converting his bankruptcy from a Chapter 7 liquidation to a Chapter 13 reorganization as permitted by §706(a). But that was because his conduct prevented him from qualifying under Chapter 13, and thus he could not satisfy §706(d), which expressly conditions conversion on the debtor’s ability to qualify under Chapter 13. . (d) This ruling forces Siegel to shoulder a heavy financial burden due to Law’s egregious misconduct and may produce inequitable results for other trustees and creditors, but it is not for courts to alter the balance that Congress struck in crafting §522. Cf. Guidry v. Sheet Metal Workers National Pension Fund, 493 U.S. 365, 376–377. P. 11. (e) Ample authority remains to address debtor misconduct, including denial of discharge, see §727(a)(2)–(6); sanctions for bad-faith litigation conduct under the Bankruptcy Rules, §105(a), or a bankruptcy court’s inherent powers; enforcement of monetary sanctions through the normal procedures for collecting money judgments, see §727(b); or possible prosecution under 18 U. S. C. §152. . 435 Fed. Appx. 697, reversed and remanded. Scalia, J., delivered the opinion for a unanimous Court.

Chapter 7 of the Bankruptcy Code gives an insolvent debtor the opportunity to discharge his debts by liquidating his assets to pay his creditors. However, Chapter 7 authorizes the debtor to exempt certain kinds of property from the bankruptcy estate, enabling him to retain those assets postbankruptcy. Section 522(d) of the Code provides that exempt property is not liable for payment of any personal expenses, but exempts up to $22,975 in equity in the debtor's residence. Petitioner filed for Chapter 7 bankruptcy in 2004, and respondent was appointed trustee. The estate included petitioner Law, whose only significant asset was his house in California. Respondent valued the house at $363,348 and claimed that $75,000 of its value was covered by California's homestead exemption. But the deed of trust supporting that lien had been recorded by Law in 1999 and reflected a debt to someone named "Lili Lin of Artesia." Respondent then filed an adversary proceeding against Law, claiming that Law had ever entered into a loan to him in exchange for the disputed deed. Law refused to disclaim any interest in the disputed property. Over several years, litigation ensued, and he ultimately prevailed in the foreclosure of the house and subsequent sale of it to Siegel, who claimed that he had no equity in it. He then unsuccessfully sought to contest the sale of the disputed house, but ultimately prevailed on the ground that it was a sham, and that he was not the true beneficiary. Ultimately, in an order concluding that no person named Lili Lin ever made a loan or approved any declaration or pleading purporting to come from her, but rather that Law himself hadauthored, signed, and filed some or all of the papers, the court found that the loan was a fiction, meant to preserve Law's equity beyond what he was entitled to exempt by perpetrating a fraud on his creditors and the court. The court granted Siegel a motion to "surcharge" the entirety of Law, making those funds available to defray his attorney's fees, and the Court of Appeals affirmed. Held: A bankruptcy court nonetheless may order that a debtor's exempt assets be used to pay administrative expenses incurred as a result of the debtor s misconduct. . (a) The bankruptcy court has statutory authority to issue an order, process, or judgment that is necessary or appropriate to carry out the provisions of, 11 U. S. C. §105(a). But in exercising those statutory and inherent powers, a bankruptcy court may not contravene specific statutory provisions. It is not an equitable power in bankruptcy courts to impose on debtors an absolute right to retain a right to property exempt from debtors, nor does it give debtors a right necessarily to retain an equitable right to impose such property. Cf. Marrama v. Citizens Bank of Mass., 549 U.S. 365-376. Moreover, the statute sets forth carefully calibrated exceptions and limitations, some of which relate to the debtor’s misconduct, and sets forth a number of carefully calibrated limitations and limitations. For example, § 503(b)(2) makes exempt property liable for prepetition debts, but does not eliminate it en-tirely. Section 5 22(o) prevents a debtor from claiming a homestead tax exemption to the extent he acquired the homestead with nonexempt property in the previous 10 years with the intent to hinder, delay, or defraud a creditor. §522(k)(1) and note following§522(c). The reasonable attorney-s fees Siegel incurred defeating the lili Lin lien were indubitably an administrative expense, but he gave no reason to depart from the normal rule of statutory construction that words repeated in different parts of the same statute generally have the same meaning. There is ample authority to deny the dishonest debtor a discharge. In addition, Federal Rule 9011 authorizes a court to impose sanctions for bad-faith litigation conduct, which may include an order directing payment... of some reasonable attorneys' fees and other expenses incurred by a direct result of a violation of the violation. But even if the abuse of process language were deemed to confer additional authority beyond that conferred by the first sentence (which is doubtful), that general authority would also be limited by more specific Code provisions, such as §1307(c), which provides that a proceeding under Chapter 13 could be dismissed or converted to a Chapter 7 proceeding for cause, which the court interpreted to authorize dismissal or conversion for bad faith conduct. Even if the second sentence of §105 (a), which adds little to the analysis, states that no provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary to enforce or implement court orders or rules, or to prevent an abuse of processes, is not a valid basis for ordering the bankruptcy court

2013_12-3

https://www.oyez.org/cases/2013/12-3

. To safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corporation, Congress enacted the Sarbanes-Oxley Act of 2002, 116Stat. 745. See S. Rep. No. 107–146, pp. 2–11 (2002). A provision of the Act, 18 U. S. C. §1514A, protects whistleblowers. Section 1514A, at the time here relevant, instructed: “No [public] company . . . , or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass,or in any other manner discriminate against an employee in the terms and conditions of employment because of [whistleblowing or other protected activity].” §1514A(a) (2006 ed.). This case concerns the definition of the protected class: Does §1514A shield only those employed by the public company itself, or does it shield as well employees of privately held contractors and subcontractors—for example, investment advisers, law firms, accounting enterprises—who perform work for the public company? We hold, based on the text of §1514A, the mischief to which Congress was responding, and earlier legislation Congress drew upon, that the provision shelters employees of private contractors and subcontractors, just as it shelters employees of the public company served by the contractors and subcontractors. We first summarize our principal reasons, then describe this controversy and explain our decision more comprehensively. Plaintiffs below, petitioners here, are former employees of private companies that contract to advise or manage mutual funds. The mutual funds themselves are public companies that have no employees. Hence, if the whistle is to be blown on fraud detrimental to mutual fund investors, the whistleblowing employee must be on another company’s payroll, most likely, the payroll of the mutual fund’s investment adviser or manager. Taking the allegations of the complaint as true, both plaintiffs blew the whistle on putative fraud relating to the mutual funds and, as a consequence, suffered adverse action by their employers. Plaintiffs read §1514A to convey that “[n]o . . . contractor . . . may . . . discriminate against [its own] employee [for whistleblowing].” We find that reading consistent with the text of the statute and with common sense. Contractors are in control of their own employees, but are not ordinarily positioned to control someone else’s workers. Moreover, we resist attributing to Congress a purpose to stop a contractor from retaliating against whistleblowers employed by the public company the contractor serves, while leaving the contractor free to retaliate against its own employees when they reveal corporate fraud. In the Enron scandal that prompted the Sarbanes-Oxley Act, contractors and subcontractors, including the accounting firm Arthur Andersen, participated in Enron’s fraud and its coverup. When employees of those contractors attempted to bring misconduct to light, they encountered retaliation by their employers. The Sarbanes-Oxley Act contains numerous provisions aimed at controlling the conduct of accountants, auditors, and lawyers who work with public companies. See, e.g., 116Stat. 750–765, 773–774, 784, §§101–107, 203–206, 307. Given Congress’ concern about contractor conduct of the kind that contributed to Enron’s collapse, we regard with suspicion construction of §1514A to protect whistleblowers only when they are employed by a public company, and not when they work for the public company’s contractor. Congress borrowed §1514A’s prohibition against retaliation from the wording of the 2000 Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U. S. C. §42121. That Act provides: “No air carrier or contractor or subcontractor of an air carrier may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment” when the employee provides information regarding violations “relating to air carrier safety” to his or her employer or federal authorities. §42121(a)(1). AIR 21 has been read to cover, in addition to employees of air carriers, employees of contractors and subcontractors of the carriers. Given the parallel statu-tory texts and whistleblower protective aims, we readthe words “an employee” in AIR 21 and in §1514A to have similar import. I A The Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley or Act) aims to “prevent and punish corporate and criminal fraud, protect the victims of such fraud, preserve evidence of such fraud, and hold wrongdoers accountable for their actions.” S. Rep. No. 107–146, p. 2 (2002) (hereinafter S. Rep.).[1] Of particular concern to Congress was abundant evidence that Enron had succeeded in perpetuating its massive shareholder fraud in large part due to a “corporate code of silence”; that code, Congress found, “discourage[d] employees from reporting fraudulent behavior not only to the proper authorities, such as the FBI and the SEC, but even internally.” Id., at 4–5 (internal quotation marks omitted). When employees of Enron and its accounting firm, Arthur Andersen, attempted to report corporate misconduct, Congress learned, they faced retaliation, including discharge. As outside counsel advised company officials at the time, Enron’s efforts to “quiet” whistleblowers generally were not proscribed under then-existing law. Id., at 5, 10. Congress identified the lack of whistleblower protection as “a significant deficiency” in the law, for in complex securities fraud investigations, employees “are [often] the only firsthand witnesses to the fraud.” Id., at 10. Section 806 of Sarbanes-Oxley addresses this concern. Titled “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud,” §806 added a new provision to Title 18 of the United States Code, 18 U. S. C. §1514A, which reads in relevant part: “Civil action to protect against retaliation in fraud cases “(a) Whistleblower Protection for Employees of Publicly Traded Companies.—No company with a class of securities registered under section 12 ofthe Securities Exchange Act of 1934 ( 15 U. S. C. §78l), or that is required to file reports under section 15(d)of the Securities Exchange Act of 1934 (15 U. S. C. §78o(d)), or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any othermanner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee— “(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities or commodities fraud], any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by [a federal agency, Congress, or supervisor] . . . .” §806, 116Stat. 802.[2] Congress has assigned whistleblower protection largely to the Department of Labor (DOL), which administers some 20 United States Code incorporated whistleblower protection provisions. See 78 Fed. Reg. 3918 (2013). The Secretary has delegated investigatory and initial adju-dicatory responsibility over claims under a number of these provisions, including §1514A, to DOL’s Occupational Safety and Health Administration (OSHA). Ibid. OSHA’s order may be appealed to an administrative law judge, and then to DOL’s Administrative Review Board (ARB). 29 CFR §§1980.104 to 1980.110 (2011). In common with other whistleblower protection provisions enforced by DOL, see 77 Fed. Reg. 3912 (2012), the ARB’s determination on a §1514A claim constitutes the agency’s final decision and is reviewable in federal court under the standards stated in the Administrative Procedure Act, 5 U. S. C. §706. If, however, the ARB does not issue a final decision within 180 days of the filing of the complaint, and the delay is not due to bad faith on the claimant’s part, the claimant may proceed to federal district court for de novo review. 18 U. S. C. §1514A(b). An employee prevailing in a proceeding under §1514A is entitled to “all relief necessary to make the employee whole,” including “reinstatement with the same seniority status that the employee would have had, but for the discrimination,” backpay with interest, and compensation for litigation costs. §1514A(c). Congress modeled §1514A on the anti-retaliation provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U. S. C. §42121, a measure enacted two years earlier. See S. Rep., at 30 (corporate whistleblower protections “track [AIR 21’s] protections as closely as possible”). Section 1514A incorporates by cross-reference AIR 21’s administrative enforcement procedures. 18 U. S. C. §1514A(b)(2). B Petitioners Jackie Hosang Lawson and Jonathan M. Zang (plaintiffs) separately initiated proceedings under §1514A against their former employers, privately held companies that provide advisory and management services to the Fidelity family of mutual funds. The Fidelity funds are not parties to either case; as is common in the mutual fund industry, the Fidelity funds themselves have no employees. Instead, they contract with investment advisers like respondents to handle their day-to-day operations, which include making investment decisions, preparing reports for shareholders, and filing reports with the Securities and Exchange Commission (SEC). Lawson was employed by Fidelity Brokerage Services, LLC, a subsidiary of FMR Corp., which was succeeded by FMR LLC. Zang was employed by a different FMR LLC subsidiary, Fidelity Management & Research Co., and later by one of that company’s subsidiaries, FMR Co., Inc. For convenience, we refer to respondents collectively as FMR. Lawson worked for FMR for 14 years, eventually serving as a Senior Director of Finance. She alleges that, after she raised concerns about certain cost accounting methodologies, believing that they overstated expenses associated with operating the mutual funds, she suffered a seriesof adverse actions, ultimately amounting to constructive discharge. Zang was employed by FMR for eight years, most recently as a portfolio manager for several of the funds. He alleges that he was fired in retaliation for raising concerns about inaccuracies in a draft SEC reg-istration statement concerning certain Fidelity funds. Lawson and Zang separately filed administrative complaints alleging retaliation proscribed by §1514A. After expiration of the 180-day period specified in §1514A(b)(1), Lawson and Zang each filed suit in the U. S. District Court for the District of Massachusetts. FMR moved to dismiss the suits, arguing, as relevant, that neither plaintiff has a claim for relief under §1514A. FMR is privately held, and maintained that §1514A protects only employees of public companies—i.e., companies that either have “a class of securities registered under section 12 of the Securities Exchange Act of 1934,” or that are “required to file reports under section 15(d)” of that Act. §1514A(a).[3] In a joint order, the District Court rejected FMR’s interpretation of §1514A and denied the dismissal motions in both suits. 724 F. Supp. 2d 141 (Mass. 2010). On interlocutory appeal, a divided panel of the First Circuit reversed. 670 F. 3d 61 (2012). The Court of Appeals majority acknowledged that FMR is a “contractor”[4] within the meaning of §1514A(a), and thus among the actors prohibited from retaliating against “an employee” who engages in protected activity. The majority agreed with FMR, however, that “an employee” refers only to employees of public companies and does not cover a contractor’s own employees. Id., at 68–80. Judge Thompson dissented. In her view, the majority had “impose[d] an unwarranted restriction on the intentionally broad language of the Sarbanes-Oxley Act” and “bar[red] a significant class of potential securities-fraud whistleblowers from any legal protection.” Id., at 83. Several months later, the ARB issued a decision in an unrelated case, Spinner v. David Landau & Assoc., LLC, No. 10–111 etc., ALJ No. 2010–SOX–029 (May 31, 2012),[5] disagreeing with the Court of Appeals’ interpretation of §1514A. In a comprehensive opinion, the ARB explained its position that §1514A affords whistleblower protection to employees of privately held contractors that render services to public companies. Ibid.[6] We granted certiorari, 569 U. S. ___ (2013), to resolve the division of opinion on whether §1514A extends whistleblower protection to employees of privately held contractors who perform work for public companies. II A In determining the meaning of a statutory provision, “we look first to its language, giving the words used their ordinary meaning.” Moskal v. United States, 498 U. S. 103, 108 (1990) (citation and internal quotation marks omitted). As Judge Thompson observed in her dissent from the Court of Appeals’ judgment, “boiling [§1514A(a)] down to its relevant syntactic elements, it provides that ‘no . . . contractor . . . may discharge . . . an employee.’ ” 670 F. 3d, at 84 (quoting §1514A(a)). The ordinary meaning of “an employee” in this proscription is the contractor’s own employee. FMR’s interpretation of the text requires insertion of“of a public company” after “an employee.” But where Con-gress meant “an employee of a public company,” it said so: With respect to the actors governed by §1514A, the provision’s interdictions run to the officers, employees, contractors, subcontractors, and agents “of such company,” i.e., a public company. §1514A(a). Another anti-retaliation pro-vision in Sarbanes-Oxley provides: “[A] broker or dealer and persons employed by a broker or dealer who areinvolved with investment banking activities may not, directly or indirectly, retaliate against or threaten to retaliate against any securities analyst employed by that broker or dealer or its affiliates . . . .” 15 U. S. C. §78o–6(a)(1)(C) (emphasis added). In contrast, nothing in §1514A’s language confines the class of employees protected to those of a designated employer. Absent any textual qualification, we presume the operative language means what it appears to mean: A contractor may not retaliate against its own employee for engaging in protected whistle-blowing activity.[7] Section 1514A’s application to contractor employeesis confirmed when we enlarge our view from the term“an employee” to the provision as a whole. The prohib-ited retaliatory measures enumerated in §1514A(a)—discharge, demotion, suspension, threats, harassment, or dis-crimination in the terms and conditions of employment—are commonly actions an employer takes against itsown employees. Contractors are not ordinarily posi-tioned to take adverse actions against employees of the public company with whom they contract. FMR’s interpretation of §1514A, therefore, would shrink to insignificance the provision’s ban on retaliation by contractors. The dissent embraces FMR’s “narrower” construction. See post, at 2, 3, 4, 7. FMR urges that Congress included contractors in §1514A’s list of governed actors simply to prevent public companies from avoiding liability by employing contractors to effectuate retaliatory discharges. FMR describes such a contractor as an “ax-wielding specialist,” illustrated by George Clooney’s character in the movie Up in the Air.[8] Brief for Respondents 24–25 (internal quotation marks omitted). As portrayed by Clooney, an ax-wielding specialist is a contractor engaged only as the bearer of the bad news that the employee has been fired; he plays no role in deciding who to terminate. If the company employing the ax-wielder chose the recipients of the bad tidings for retaliatory reasons, the §1514A claim would properly be directed at the company. Hiring the ax-wielder would not insulate the company from liability. Moreover, we see no indication that retaliatory ax-wielding specialists are the real-world problem that prompted Congress to add contractors to §1514A.[9] Moving further through §1514A to the protected activity described in subsection (a)(1), we find further reason to believe that Congress presumed an employer-employee relationship between the retaliator and the whistleblower. Employees gain protection for furnishing information to a federal agency, Congress, or “a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct).” §1514A(a)(1) (emphasis added). And under §1514A(a)(2), employees are protected from retaliation for assisting “in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation” of any of the enumerated fraud provisions, securities regulations, or other federal law relating to shareholder fraud. §1514A(a)(2) (emphasis added). The reference to employer knowledge is an additional indicator of Congress’ expectation that the retaliator typically will be the employee’s employer, not another entity less likely to know of whistleblower complaints filed or about to be filed. Section 1514A’s enforcement procedures and remedies similarly contemplate that the whistleblower is an employee of the retaliator. As earlier noted, see supra, at 6, §1514A(b)(2)(A) provides that a claim under §1514A “shall be governed under the rules and procedures set forth in section 42121(b) of title 49,” i.e., AIR 21’s anti-retaliation provision. Throughout §42121(b), the respondent is referred to as “the employer.” See 49 U. S. C. §42121(b)(2)(B)(ii) (The Secretary shall not conduct an investigation into a retaliation claim “if the employer demonstrates,by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action inthe absence of that behavior.”); §42121(b)(2)(B)(iv)(“Relief may not be ordered . . . if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”). Regarding remedies, §1514A(c)(2) states that a successful claimant shall be entitled to “reinstatement with the same seniority status that the employee would have had, but for the discrimination,” as well as “the amount of back pay, with interest.” As the Solicitor General, for the United States as amicus curiae, observed, “It is difficult, if not impossible, to see how a contractor or subcontractor could provide those remedies to an employee of a public company.” Brief for United States as Amicus Curiae 15. The most sensible reading of §1514A’s numerous references to an employer-employee relationship between the respondent and the claimant is that the provision’s protections run between contractors and their own employees. Remarkably, the dissent attributes to Congress a strange design. Under the dissent’s “narrower” construction, post, at 2, 3, 4, 7, a public company’s contractor may not retaliate against a public company’s employees, academic here because the public company has no employees. According to the dissent, this coverage is necessary to prevent “a gaping hole” that would allow public companies to “evade §1514A simply by hiring a contractor to engage in the very retaliatory acts that an officer or employee could not.” Post, at 10. This cannot be right—even if Congress had omitted any reference to contractors, subcontractors, or agents in §1514A, the remaining language surely would prohibit a public company from directing someone else to engage in retaliatory conduct against the public company’s employees; hiring an ax-wielder to announce an employee’s demotion does not change the fact that the public company is the entity commanding the demotion. Under the dissent’s reading of §1514A, the inclusion of contractors as covered employers does no more than make the contractor secondarily liable for complying with such marching orders—hardly a hole at all.[10] There would be a huge hole, on the other hand, were the dissent’s view of §1514A’s reach to prevail: Contractors’ employees would be disarmed; they would be vulnerableto retaliation by their employers for blowing the whistleon a scheme to defraud the public company’s investors, even a scheme engineered entirely by the contractor. Not only would mutual fund advisers and managers escape §1514A’s control. Legions of accountants and lawyers would be denied §1514A’s protections. See infra, at 19–22. Instead of indulging in fanciful visions of whistleblowing babysitters and the like, post, at 1–2, 6, 12–13, 20, the dissent might pause to consider whether a Congress, prompted by the Enron debacle, would exclude from whistleblower protection countless professionals equipped to bring fraud on investors to a halt. B We turn next to two textual arguments made by FMR. First, FMR urges that “an employee” must be read to refer exclusively to public company employees to avoid the absurd result of extending protection to the personal employees of company officers and employees, e.g., their housekeepers or gardeners. See Brief for Respondents 19–20; post, at 1–2, 6, 12–13, 20. Plaintiffs and the Solicitor General do not defend §1514A’s application to personal employees. They argue, instead, that the prohibition against an “officer” or “employee” retaliating against “an employee” may be read as imposing personal liability only on officers and employees who retaliate against other public company employees. Brief for Petitioners 12; Brief for United States as Amicus Curiae 16.[11] FMR calls this reading “bizarre,” for it would ascribe to the words “an employee” in §1514A(a) “one meaning if the respondent is an ‘officer’ and a different meaning if the respondent is a ‘contractor.’ ” Brief for Respondents 20–21. We agree with FMR that plaintiffs and the Solicitor General offer an interpretation at odds with the text Congress enacted. If, as we hold, “an employee” includes employees of contractors, then grammatically, the term also includes employees of public company officers and employees. Nothing suggests Congress’ attention was drawn to the curiosity its drafting produced. The issue, however, is likely more theoretical than real. Few housekeepers or gardeners, we suspect, are likely to come upon and comprehend evidence of their employer’s complicity in fraud. In any event, FMR’s point is outweighed by the compelling arguments opposing FMR’s contention that “an employee” refers simply and only to public company employees. See supra, at 9–14. See also infra, at 23–24 (limiting principles may serve as check against overbroad applications). Second, FMR argues that the statutory headings support the exclusion of contractor employees from §1514A’s protections. Although §1514A’s own heading is broad (“Civil action to protect against retaliation in fraud cases”), subsection (a) is captioned “Whistleblower Protection for Employees of Publicly Traded Companies.” Similarly, the relevant public law section, §806 of Sarbanes-Oxley, is captioned “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” 116 Stat. 802. The Court of Appeals described the latter two headings as “explicit guides” limiting protection under §1514A to employees of public companies. 670 F. 3d, at 69. This Court has placed less weight on captions. In Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519 (1947) , we explained that where, as here, “the [statutory] text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner.” Id., at 528. The under-inclusiveness of the two headings relied on by the Court of Appeals is apparent. The provision indisputably extends protection to employees of companies that file reports with the SEC pursuant to §15(d) of the 1934 Act, even when such companies are not “publicly traded.” And the activity protected under §1514A is not limited to “provid[ing] evidence of fraud”; it also includes reporting violations of SEC rules or regulations. §1514A(a)(1). As in Trainmen, the headings here are “but a short-hand reference to the general subject matter” of the provision, “not meant to take the place of the detailed provisions of the text.” 331 U. S., at 528. Section 1514A is attended by numerous indicators that the statute’s prohibitions govern the relationship between a contractor and its own employees; we do not read the headings to “undo or limit” those signals. Id., at 529.[12] III A Our textual analysis of §1514A fits the provision’s purpose. It is common ground that Congress installed whistleblower protection in the Sarbanes-Oxley Act as one means to ward off another Enron debacle. S. Rep., at 2–11. And, as the ARB observed in Spinner, “Congress plainly recognized that outside professionals—ac-countants, law firms, contractors, agents, and the like—were complicit in, if not integral to, the shareholder fraud and subsequent cover-up [Enron] officers . . . perpetrated.” ALJ No. 2010–SOX–029, pp. 12–13. Indeed, the Senate Report demonstrates that Congress was as focused on the role of Enron’s outside contractors in facilitating the fraud as it was on the actions of Enron’s own officers. See, e.g., S. Rep., at 3 (fraud “occurred with extensive participation and structuring advice from Arthur Andersen . . . which was simultaneously serving as both consultant and independent auditor for Enron” (internal quotation marks and brackets omitted)); id., at 4 (“professionals from accounting firms, law firms and business consulting firms, who were paid millions to advise Enron on these practices, assured others that Enron was a solid investment”); id., at 4–5 (team of Andersen employees were tasked with destroying “physical evidence and documents” relating to Enron’s fraud); id., at 5 (“Enron and Andersen were taking advantage of a system that allowed them to behave in an apparently fraudulent manner”); id., at 11 (Enron’s fraud partly attributable to “the well-paid professionals who helped create, carry out, and cover up the complicated corporate ruse when they should have been raising concerns”); id., at 20–21 (“Enron’s accountants and lawyers brought all their skills and knowledge to bear in assisting the fraud to succeed and then in covering it up.”). Also clear from the legislative record is Congress’ understanding that outside professionals bear significant responsibility for reporting fraud by the public companies with whom they contract, and that fear of retaliation was the primary deterrent to such reporting by the employ-ees of Enron’s contractors. Congressional investigators discovered ample evidence of contractors demoting or dis-charging employees they have engaged who jeopardized the contractor’s business relationship with Enron by objecting to Enron’s financial practices. See, e.g., Oppel, Merrill Replaced Research Analyst Who Upset Enron, N. Y. Times, July 30, 2002, p. A1 (“In the summer of 1998, when it was eager to win more investment banking business from Enron, Merrill Lynch replaced a research analyst who had angered Enron executives by rating the company’s stock ‘neutral’ with an analyst who soon upgraded the rating, according to Congressional investi-gators.”); Yost, Andersen Whistleblower Was Removed, Associated Press (Apr. 3, 2002) (Congressional investigation reveals that Andersen removed one of its partners from its Enron team after Enron officials expressed unhappiness with the partner’s questioning of certain accounting practices); Oppel, The Man Who Paid the Price for Sizing up Enron, N. Y. Times, Mar. 27, 2002, p. C1 (“Enron executives pressed UBS PaineWebber to take action against a broker who advised some Enron employees to sell their shares in August and was fired by the brokerage firm within hours of the complaint, accordingto e-mail messages released today by Congressionalinvestigators.”). In the same vein, two of the four examples of whistleblower retaliation recounted in the Senate Report involved outside professionals retaliated against by their own employers. S. Rep., at 5 (on Andersen and UBS Paine-Webber employees); see also id., at 4–5 (Andersen employees who “attempted to report or ‘blow the whistle’ on [Enron’s] fraud . . . were discouraged at nearly every turn”). Emphasizing the importance of outside professionals as “gatekeepers who detect and deter fraud,” the Senate Report concludes: “Congress must reconsider the incentive system that has been set up that encourages accountants and lawyers who come across fraud in their work to remain silent.” Id., at 20–21. From this legislative history, one can safely conclude that Congress enacted §1514A aiming to encourage whistleblowing by contractor employees who suspect fraud involving the public companies with whom they work.[13] FMR argues that Congress addressed its concerns about the role of outside accountants and lawyers in facilitating Enron’s wrongdoing, not in §1514A, but exclusively in other provisions of Sarbanes-Oxley “directly regulat[ing] accountants and lawyers.” Brief for Respondents 40. In particular, FMR points to sections of the Act requiring accountants and lawyers for public companies to investigate and report misconduct, or risk being banned from further practice before the SEC. Id., at 41 (citing 15 U. S. C. §§7215(c)(4), 7245). These requirements, however, indicate why Congress would have wanted to extend §1514A’s coverage to the many lawyers and accountants who perform outside work for public companies. Although lawyers and accountants are subject to extensive regulations and sanctions throughout Sarbanes-Oxley, no provision of the Act other than §1514A affords them protection from retaliation by their employers for complying with the Act’s reporting requirements.[14] In short, we cannot countenance the position advanced by FMR and the dissent, see post, at 14–16, that Congress intended to leave these professionals vulnerable to discharge or other retaliatory action for complying with the law. B Our reading of §1514A avoids insulating the entire mutual fund industry from §1514A, as FMR’s and the dissent’s “narrower construction” would do. As companies “required to file reports under section 15(d) of the Securities Exchange Act of 1934,” 18 U. S. C. §1514A(a), mutual funds unquestionably are governed by §1514A. Because mutual funds figure prominently among such report-filing companies, Congress presumably had them in mind when it added to “publicly traded companies” the discrete category of companies “required to file reports under section 15(d).” Virtually all mutual funds are structured so that they have no employees of their own; they are managed, instead, by independent investment advisers. See S. Rep. No. 91–184, p. 5 (1969) (accompanying the 1970 amendments to the Investment Company Act of 1940). The United States investment advising industry manages $14.7 trillion on behalf of nearly 94 million investors. See 2013 Investment Company Fact Book 7 (53d ed.), available at http://www.icifactbook.org/pdf/2013_factbook.pdf (as visited Feb. 20, 2014, and available in Clerk of Court’s case file). These investment advisers, under our reading of §1514A, are contractors prohibited from retaliating against their own employees for engaging in whistleblowing activity. This construction protects the “insiders [who] are the only firsthand witnesses to the [shareholder] fraud.” S. Rep., at 10. Under FMR’s and the dissent’s reading, in contrast, §1514A has no application to mutual funds, for all of the potential whistleblowers are employed by the privately held investment management companies, not by the mutual funds themselves. See Brief for Respondents 45 (describing this glaring gap as “merely a consequence of the corporate structure” of mutual funds). The Court of Appeals found exclusion of the mutual fund industry from §1514A tenable because mutual funds and their investment advisers are separately regulated under the Investment Company Act of 1940, 15 U. S. C. §80a–1 et seq., the Investment Advisers Act of 1940, 15 U. S. C. §80b–1 et seq., and elsewhere in Sarbanes-Oxley. 670 F. 3d, at 72–73. See also post, at 16–17, n. 10. But this separate regulation does not remove the problem, for nowhere else in these legislative measures are investment management employees afforded whistleblower protection. Section 1514A alone shields them from retaliation for bringing fraud to light. Indeed, affording whistleblower protection to mutual fund investment advisers is crucial to Sarbanes-Oxley’s endeavor to “protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws.” 116Stat. 745. As plaintiffs observe, these disclosures are written, not by anyone at the mutual funds themselves, but by employees of the investment advisers. “Under FMR’s [and the dissent’s] proposed in-terpretation of section 1514A, FMR could dismiss any FMR employee who disclosed to the directors of or lawyers for the Fidelity funds that there were material falsehoods in the documents being filed by FMR with the SEC in the name of those funds.” Reply Brief 13. It is implausible that Congress intended to leave such an employee remediless. See id., at 14. C Unable credibly to contest the glaring under-inclusiveness of the “narrower reading” FMR urges, the dissent emphasizes instead FMR’s claim that the reading of §1514A we adopt is all too inclusive. See post, at 1–2, 6, 12–13, 20–21. FMR’s amici also press this point, observing that the activity protected under §1514A(a)(1) encompasses reporting not only securities fraud ( 18 U. S. C. §1348), but also mail, wire, and bank fraud (§§1341, 1343, 1344). Including contractor employees in the protected class, they therefore assert, could “cas[t] a wide net over employees who have no exposure to investor-related activities and thus could not possibly assist in detecting investor fraud.” Brief for Chamber of Commerce of the United States of America as Amicus Curiae 3. See also Brief for Securities Industry and Financial Markets Association as Amicus Curiae 7–16. There is scant evidence, however, that these floodgate-opening concerns are more than hypothetical. DOL’s regulations have interpreted §1514A as protecting contractor employees for almost a decade.[15] See 69 Fed. Reg. 52105–52106 (2004). Yet no “narrower construction” advocate has identified even a single case in which the employee of a private contractor has asserted a §1514A claim based on allegations unrelated to shareholder fraud. FMR’s parade of horribles rests solely on Lockheed Martin Corp. v. ARB, 717 F. 3d 1121 (CA10 2013), a case involving mail and wire fraud claims asserted by an employee of a public company—i.e., claims in no way affected by today’s decision. The dissent’s fears that household employees and others, on learning of today’s decision, will be prompted to pursue retaliation claims, post, at 13, and that OSHA will find them meritorious under §1514A, seem to us unwarranted. If we are wrong, however, Congress can easily fix the problem by amending §1514A explicitly to remove personal employees of public company officers and employees from the provision’s reach. But it would thwart Congress’ dominant aim if contractors were taken off the hook for retaliating against their whistleblowing employees, just to avoid the unlikely prospect that babysitters, nannies, gardeners, and the like will flood OSHA with §1514A complaints. Plaintiffs and the Solicitor General observe that overbreadth problems may be resolved by various limit-ing principles. They point specifically to the word“contractor.” Plaintiffs note that in “common parlance,” “contractor” does not extend to every fleeting business relationship. Instead, the word “refers to a party whose performance of a contract will take place over a significant period of time.” Reply Brief 16. See also Fleszar v. United States Dept. of Labor, 598 F. 3d 912, 915 (CA7 2010) (“Nothing in §1514A implies that, if [a privately held business] buys a box of rubber bands from Wal-Mart, a company with traded securities, the [business] becomes covered by §1514A.”). The Solicitor General further maintains that §1514A protects contractor employees only to the extent that their whistleblowing relates to “the contractor . . . fulfilling its role as a contractor for the public company, not the contractor in some other capacity.” Tr. of Oral Arg. 18–19 (Government counsel). See also id., at 23 (“[I]t has to be a person who is in a position to detect and report the types of fraud and securities violations that are included in the statute. . . . [W]e think that ‘the contractor of such com-pany’ refers to the contractor in that role, working for the public company.’ ”). Finally, the Solicitor General suggests that we need not determine the bounds of §1514A today, because plaintiffs seek only a “mainstream application” of the provision’s protections. Id., at 20 (Government counsel). We agree. Plaintiffs’ allegations fall squarely within Congress’ aim in enacting §1514A. Lawson alleges that she was constructively discharged for reporting accounting practices that overstated expenses associated with managing certain Fidelity mutual funds. This alleged fraud directly implicates the funds’ shareholders: “By inflating its expenses, and thus understating its profits, [FMR] could potentially increase the fees it would earn from the mutual funds, fees ultimately paid by the shareholders of those funds.” Brief for Petitioners 3. Zang alleges that he was fired for expressing concerns about inaccuracies in a draft registration statement FMR prepared for the SEC on behalf of certain Fidelity funds. The potential impact on shareholders of false or misleading registration statements needs no elaboration. If Lawson and Zang’s allegations prove true, these plaintiffs would indeed be “firsthand witnesses to [the shareholder] fraud” Congress anticipated §1514A would protect. S. Rep., at 10. D FMR urges that legislative events subsequent toSarbanes-Oxley’s enactment show that Congress did not intend to extend §1514A’s protections to contractor employees.[16] In particular, FMR calls our attention to the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, 124Stat. 1376 (Dodd-Frank). Dodd-Frank amended §1514A(a) to read: “No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U. S. C. 78l), or that is required to file reports under [section 12] of the [1934 Act] (15 U. S. C. 78o(d)) including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company, or nationally recognized statistical rating organization (as defined in section 3(a) of the [1934 Act] (15 U. S. C. 78c), or any officer, employee, contractor, subcontractor, or agent of such company or nationally recognized statistical rating organization, may discharge, demote, suspend, threaten, harass, or in any other manner discriminateagainst an employee in the terms and conditions of employment because of any [protected activity].” 18 U. S. C. §1514A(a) (2012 ed.) (emphasis added; footnote omitted.) The amended provision extends §1514A’s protection to employees of public company subsidiaries and nationally recognized statistical rating organizations (NRSROs). FMR asserts that Congress’ decision to add NRSROs to §1514A shows that the provision did not previously cover contractor employees: “If [§1514A] already covered every private company contracting with a public company, there would have been no need for Congress to extend [§1514A] to certain private companies.” Brief for Respondents 35–36. This argument fails at the starting gate, for FMR concedes that not all NRSROs are privately held, and not all NRSROs contract with public companies. Id., at 36. We see nothing useful to our inquiry in Congress’ decision to amend §1514A to include public company sub-sidiaries and NRSROs. More telling, at the time of the Dodd-Frank amendments, DOL regulations provided that §1514A protects contractor employees. See 29 CFR §1980.101 (2009). Congress included in its alterations no language gainsaying that protection. As Judge Thompson’s dissent from the First Circuit’s judgment observes, “Congress had a miles-wide opening to nip [DOL’s] regulation in the bud if it had wished to do so. It did not.” 670 F. 3d, at 88. Dodd-Frank also establishes a corporate whistleblowing reward program, accompanied by a new provision pro-hibiting any employer from retaliating against “a whistleblower” for providing information to the SEC, participating in an SEC proceeding, or making disclosures requiredor protected under Sarbanes-Oxley and certain other securities laws. 15 U. S. C. §78u–6(a)(6), (b)(1), (h). FMR urges that, as this provision covers employees of all companies, public or private, “[t]here is no justification” for reading §1514A to cover employees of contractors: “Any ‘gap’ that might, arguendo, have existed for employees of private entities between 2002 and 2010 has now been closed.” Brief for Respondents 44.[17] FMR, we note, somewhat overstates Dodd-Frank’s cov-erage. Section 1514A’s protections include employeeswho provide information to any “person with supervisory authority over the employee.” §1514A(a)(1)(C). Dodd-Frank’s whistleblower provision, however, focuses primarily on reporting to federal authorities. See Brief for United States as Amicus Curiae 30 (“[I]f employees of contrac-tors of public companies are not protected under Section 1514A, they are not protected for making internal complaints under . . . the Dodd-Frank Act.”). In any event, our task is not to determine whether including contractor employees in the class protected by §1514A remains necessary in 2014. It is, instead, to determine whether Congress afforded protection to contractor employees when it enacted §1514A in 2002. If anything relevant to our inquiry can be gleaned from Dodd-Frank,it is that Congress apparently does not share FMR’sconcerns about extending protection comprehensivelyto corporate whistleblowers.[18] IV We end by returning to AIR 21’s whistleblower protection provision, 49 U. S. C. §42121, enacted two years before Sarbanes-Oxley. Congress designed §1514A to “track . . . as closely as possible” the protections afforded by §42121. S. Rep., at 30. To this end, §1514A incorporates by cross-reference §42121’s administrative enforcement regime, see 18 U. S. C. §1514A(b)(2), and contains parallel statutory text. Compare §1514A(a) (“No [public] company . . . or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment” for engaging in protected activity) with 49 U. S. C. §42121(a) (“No air carrier or contractor or subcontractor of an air carrier may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment” for engaging in protected activity).[19] Section 42121 has been read to protect employees of contractors covered by the provision. The ARB has consistently construed AIR 21 to cover contractor employees. E.g., Evans v. Miami Valley Hospital, ARB No. 07–118 etc., ALJ No. 2006–AIR–022, pp. 9–11 (June 30, 2009); Peck v. Safe Air Int’l, Inc., ARB No. 02–028, ALJ No. 2001–AIR–3, p. 13 (Jan. 30, 2004).[20] And DOL’s regulations adopting this interpretation of §42121 date back to April 1, 2002, before §1514A was enacted. 67 Fed. Reg. 15454, 15457–15458 (2002). The Senate Report for AIR 21 supports this reading, explaining that the Act “provide[s] employees of airlines, and employees of airline contractors and subcontractors, with statutory whistleblower protection.” S. Rep. No. 105–278, p. 22 (1998).[21] The Court of Appeals recognized that Congress modeled §1514A on §42121, and that §42121 has been understood to protect contractor employees. 670 F. 3d, at 73–74. It nonetheless declined to interpret §1514A the same way, because, in its view, “important differences” separate the two provisions. First, unlike §1514A, §42121 contains a definition of “contractor”: “a company that performs safety-sensitive functions by contract for an air carrier.” 49 U. S. C. §42121(e). Second, unlike §1514A, §42121 does not include “officers” or “employees” among governed actors. 670 F. 3d, at 74. These distinctions, the Court of Appeals reasoned, render §1514A less amenable to an inclusive construction of the protected class. Ibid.[22] We do not find these textual differences overwhelming. True, Congress strayed from §42121’s pattern in failing to define “contractor” for purposes of §1514A, and in adding “officers” and “employees” to §1514A’s list of governed actors. And we agree that §1514A covers a far wider range than §42121 does. But in our view, neither difference warrants the determination that §1514A omits employees of contractors while §42121 includes them. The provisions’ parallel text and purposes counsel in favor of interpreting the two provisions consistently. And we have already canvassed the many reasons why §1514A is most sensibly read to protect employees of contractors. See supra, at 9–22. * * * For the reasons stated, we hold that 18 U. S. C. §1514A whistleblower protection extends to employees of contractors and subcontractors. The judgment of the U. S. Court of Appeals for the First Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 Title VIII of the Act, which contains the whistleblower protection provision at issue in this case, was authored by Senators Leahy and Grassley and originally constituted a discrete bill, S. 2010. We thus look to the Senate Report for S. 2010, S. Rep. No. 107–146, as the Senate Report relevant here. See 148 Cong. Rec. S7418 (daily ed. July 26, 2002) (statement of Sen. Leahy) (“unanimous consent” to “includ[e] in the as part of the official legislative history” of Sarbanes-Oxley that Title VIII’s “terms track almost exactly the provisions of S. 2010, introduced by Senator Leahy and reported unanimously from the Committee on the Judiciary”). 2 As discussed , at 24–26, Congress amended §1514A in 2010 to extend whistleblower coverage to employees of public companies’ subsidiaries and nationally recognized statistical ratings organizations. . Plaintiffs do not fall in either category and, in any event, their claims are governed by the prior version of §1514A. Unless otherwise noted, all citations to §1514A are to the original text in the 2006 edition of the United States Code. 3 Here, as just noted, the public company has no employees. See, at 2. 4 As §1514A treats contractors and subcontractors identically, we generally refer simply to “contractors” without distinguishing between the two. 5 The whistleblower in was an employee of an accounting firm that provided auditing, consulting, and Sarbanes-Oxley compliance services to a public company. 6 The dissent maintains that the ARB’s interpretation of §1514A is not entitled to deference because, “if any agency has the authority to resolve ambiguities in §1514A with the force of law, it is the SEC, not the Department of Labor.” at 18. Because we agree with the ARB’s conclusion that §1514A affords protection to a contractor’s employees, we need not decide what weight that conclusion should carry. We note, however, that the SEC apparently does not share the dissent’s view that it, rather than DOL, has interpretive authority over §1514A. To the contrary, the SEC is a signatory to the Government’s brief in this case, which takes the position that Congress has charged the Secretary of Labor with interpreting §1514A. Brief for United States as 9–11, 31–34. That view is hardly surprising given the lead role played by DOL in administering whistleblower statutes. See at 5. The dissent observes that the SEC “hasnot issued a regulation applying §1514A whistleblower protection to employees of public company contractors,” , at 18, but omits to inform that the SEC has not promulgated regulations interpreting §1514A, consistent with its view that Congress delegated that responsibility to DOL. 7 We need not decide in this case whether §1514A also prohibits a contractor from retaliating against an employee of one of the other actors governed by the provision. 8 This hypothetical originates in a Seventh Circuit opinion, v., 598 F. 3d 912, 915 (2010), and is mentioned in a footnote in the First Circuit’s opinion in this case, 670 F. 3d 61, 69, n. 11 (2012). 9 When asked during oral argument for an example of actual circumstances in which a contractor would have employment decisionmak-ing authority over public company employees, FMR’s counsel cited v., No. 05–139 etc., ALJ No. 2004–SOX–056 (Feb. 27, 2009). Tr. of Oral Arg. 33. That case involved a bankrupt public company that hired a private company to handle its dissolution. The ARB found the private company liable under §1514A because it acted as a “contractor, subcontractor, ” of the public company in discharging the claimant. ALJ No. 2004–SOX–056, at 10 (emphasis added). Neither FMR nor its have pointed us to any actual situation in which a public company employee would be vulnerable to retaliatory conduct by a contractor not already covered as an “agent” under §1514A. Notably, even in v., 644 F. 3d 809 (CA9 2011), the case cited by the dissent for the proposition that contractors may possess “managerial authority” over public company employees, , at 10, the alleged retaliation was by the public company itself. 10 The dissent suggests that we “fai[l] to recognize” that its construction also makes contractors primarily liable for retaliating of their own volition against employees of public companies. , at 10, n. 6. As explained at 11–12, n. 9, however, FMR and its supporters have identified not even one real-world instance of a public company employee asserting a §1514A claim alleging retaliatory conduct by a contractor. Again, no “gaping hole,” practically no hole at all. 11 The ARB endorsed this view in v., No. 10–111 etc., ALJ No. 2010–SOX–029, p. 8 (May 31, 2012). We have no occasion to determine whether the ARB would be entitled to deference in this regard, for, as explained in text, we find that the statutory text unambiguously affords protection to personal employees of public company officers and employees. §1514A(a). 12 AIR 21’s anti-retaliation provision, on which §1514A is based, includes a similarly composed heading, “Discrimination against airline employees.” . Nevertheless, that provision has been read to cover employees of companies rendering contract services to airlines. See, at 27–29. 13 FMR urges that the Senate Report’s references to “employees of publicly traded companies” demonstrate that Congress wanted to limit whistleblower protection to such employees. Brief for Respondents 30–31. This argument fails for the same reason that FMR’s reliance on the statutory section headings fails: “employees of publicly traded companies” must be understood as shorthand not designed to capture every employee covered by §1514A. See at 15–16. Senator Sarbanes’ statement, cited in the concurring opinion, , at 2, is similarly imprecise. The Act indisputably covers private accounting firms and law firms that provide services to public companies. See, ., 15 U. S. C. §§7215, 7245. Indeed, Senator Sarbanes acknowledged this point in his very next sentence. See 148 Cong. Rec. 14440 (2002) (remarks of Sen. Sarbanes) (“This legislation prohibits accounting firms from providing certain specified consulting services if they are also the auditors of the company.”). 14 The dissent suggests that the Public Company Accounting Oversight Board’s and the SEC’s authority to sanction unprofessional conduct by accountants and lawyers, respectively, “could well provide” a disincentive to retaliate against other accountants and lawyers. See , at 15. The possibility of such sanctions, however, is cold comfort to the accountant or lawyer who loses her job in retaliation for her efforts to comply with the Act’s requirements if, as the dissent would have it, §1514A does not enable her to seek reinstatement or backpay. 15 Although the dissent suggests that the ARB had not provided “definitive clarification” on the issue prior to , at 14, the ARB “repeatedly interpreted [§1514A] as affording whistleblower protection to employees of [private] contractors” before . See , No. 10–111 etc., ALJ No. 2010–SOX–029, p. 5 (citing prior decisions). 16 We can easily dismiss FMR’s invocation of a failed bill from 2004, the Mutual Fund Reform Act, S. 2059, 108th Cong., 2d Sess., §116(b), which would have amended §1514A explicitly to cover employees of investment advisers and affiliates. Brief for Respondents 34–35. “[F]ailed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute.” v., (internal quotation marks omitted). Where, as here, the proposed amendment amounted to six lines in a 51-page bill that died without any committee action, its failure is scarcely relevant to Congress’ intentions regarding a different bill enacted two years earlier. 17 FMR acknowledges that plaintiffs’ claims could have proceeded under Dodd-Frank, but for the date of enactment. Brief for Respondents 43. 18 Section 1107 of the Act is of similar breadth, declaring it a criminal offense to “tak[e] any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense.” . 19 For other provisions borrowing from AIR 21, see , governing rail carriers, which incorporates AIR 21’s enforcement procedures, and §31105, governing motor carriers, which incorporates AIR 21’s proof burdens. 20 The ARB has also interpreted similarly worded whistleblower protection provisions in the Pipeline Safety Improvement Act of 2002, , and the Energy Reorganization Act of 1974, , as protecting employees of contractors. See v.., ARB No. 07–112, ALJ No. 2006–PSI–001 etc., p. 2 (June 25, 2009); v.., ARB No. 10–013, ALJ No. 2006–ERA–031, pp. 8–9 (Mar. 28, 2012). 21 FMR protests that there is no court of appeals precedent on point, Brief for Respondents 24, n. 6, but the courts of appeals are not, of course, the only lodestar for determining whether a proposition of law is plainly established. 22 The dissent suggests the provisions’ headings are also distinguishable because §42121’s title—“Protection of employees providing air safety information”—“comfortably encompasses the employees of contractors.” , at 8. The dissent omits, however, the subsection heading directly following the title: “Discrimination against airline employees.” §42121(a).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus LAWSON et al. v. FMR LLC et al. certiorari to the united states court of appeals for the first circuit No. 12–3. Argued November 12, 2013—Decided March 4, 2014 To safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corporation, Congress passed the Sarbanes-Oxley Act of 2002. One of the Act’s provisions protects whistleblowers; at the time relevant here, that provision instructed: “No [public] company . . ., or any . . . contractor [or] subcontractor . . . of such company, may discharge, demote, suspend, threaten, harass, or . . . discriminate against an employee in the terms and conditions of employment because of [whistleblowing activity].” 18 U. S. C. §1514A(a). Plaintiffs below, petitioners here, are former employees of respondents (collectively FMR), private companies that contract to advise or manage mutual funds. As is common in the industry, the mutual funds served by FMR are public companies with no employees. Both plaintiffs allege that they blew the whistle on putative fraud relating to the mutual funds and, as a consequence, suffered retaliation by FMR. Each commenced suit in federal court. Moving to dismiss the suits, FMR argued that the plaintiffs could state no claim under §1514A, for that provision protects only employees of public companies, and not employees of private companies that contract with public companies. On interlocutory appeal from the District Court’s denial of FMR’s motion to dismiss, the First Circuit reversed, concluding that the term “an employee” in §1514A(a) refers only to employees of public companies. Held: The judgment is reversed and the case is remanded. 670 F.3d 61, reversed and remanded. Justice Ginsburg delivered the opinion of the Court, concluding that §1514A’s whistleblower protection includes employees of a public company’s private contractors and subcontractors. . (a) This reading of §1514A is supported by the provision’s text. . (1) The Court looks first to the ordinary meaning of the provision’s language. See Moskal v. United States, 498 U.S. 103, 108. As relevant here, §1514A(a) provides that “no . . . contractor . . . may discharge . . . an employee.” The ordinary meaning of “an employee” in this proscription is the contractor’s own employee. FMR’s “narrower construction” requires inserting “of a public company” after “an employee,” but where Congress meant “an employee of a public company,” it said so. The provision as a whole supports this reading. The prohibited retaliatory measures enumerated in §1514A(a)—discharge, demotion, suspension, threats, harassment, or discrimination in employment terms and conditions—are actions an employer takes against its own employees. Contractors are not ordinarily positioned to take adverse actions against employees of the public company with whom they contract. FMR’s interpretation of §1514A, therefore, would shrink to insignificance the provision’s ban on retaliation by contractors. The protected activity covered by §1514A, and the provision’s enforcement procedures and remedies, also indicate that Congress presumed an employer-employee relationship between the retaliator and the whistleblowing employee. . (2) FMR’s textual arguments are unpersuasive. It urges that “an employee” must be read to refer exclusively to public company employees to avoid the absurd result of extending protection to the personal employees of company officers and employees, e.g., their housekeepers or gardeners. This concern appears more theoretical than real and, in any event, is outweighed by the compelling arguments opposing FMR’s reading of §1514A. FMR also urges that its reading is supported by the provision’s statutory headings, but those headings are “not meant to take the place of the detailed provisions of the text.” Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528. . (b) Other considerations support the Court’s textual analysis. . (1) The Court’s reading fits §1514A’s aim to ward off another Enron debacle. The legislative record shows Congress’ understanding that outside professionals bear significant responsibility for reporting fraud by the public companies with whom they contract, and that fear of retaliation was the primary deterrent to such reporting by the employees of Enron’s contractors. Sarbanes-Oxley contains numerous provisions designed to control the conduct of accountants, auditors, and lawyers who work with public companies, but only §1514A affords such employees protection from retaliation by their employers for complying with the Act’s reporting requirements. . (2) This Court’s reading of §1514A avoids insulating the entire mutual fund industry from §1514A. Virtually all mutual funds are structured so that they have no employees of their own; they are managed, instead, by independent investment advisors. Accordingly, the “narrower construction” endorsed by FMR would leave §1514A with no application to mutual funds. The Court’s reading of §1514A, in contrast, protects the employees of investment advisors, who are often the only firsthand witnesses to shareholder fraud involving mutual funds. . (3) There is scant evidence that today’s decision will open any floodgates for whistleblowing suits outside §1514A’s purposes. The Department of Labor’s regulations have interpreted §1514A as protecting contractor employees for almost a decade, yet FMR is unable to identify a single case in which the employee of a private contractor has asserted a §1514A claim based on allegations unrelated to shareholder fraud. Plaintiffs and the Solicitor General suggest various limiting principles to dispel any overbreadth problems. This Court need not determine §1514A’s bounds here, however, because, if plaintiffs’ allegations prove true, plaintiffs are precisely the “firsthand witnesses to [the shareholder] fraud” Congress anticipated §1514A would protect. S. Rep. No. 107–146, p. 10. . (4) The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act does not affect this Court’s task of determining whether Congress in 2002 afforded protection to whistleblowing contractor employees. . (c) AIR 21’s whistleblower protection provision has been read to cover, in addition to employees of air carriers, employees of contractors and subcontractors of the carriers. Given the parallel statutory texts and whistleblower protective aims, the Court reads the words “an employee” in AIR 21 and in §1514A to have similar import. . Justice Scalia, joined by Justice Thomas, relying only on 18 U. S. C. §1514A’s text and broader context, agreed that §1514A protects employees of private contractors from retaliation when they report covered forms of fraud. . Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer and Kagan, JJ., joined, and in which Scalia and Thomas, JJ., joined in principal part. Scalia, J., filed an opinion concurring in principal part and concurring in the judgment, in which Thomas, J., joined. Sotomayor, J., filed a dissenting opinion, in which Kennedy and Alito, JJ., joined.

Section 1514A of the Sarbanes-Oxley Act of 2002 (Act) provides that no public company or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of such protected activity. Title 18 U.S. C. §1514A shields only those employed by the public company itself, or as well employees of privately held contractors and subcontractors. Petitioners, former employees of private companies that contract to advise or manage mutual funds, each filed separate administrative complaints alleging retaliation proscribed by §15 14A. The mutual funds themselves are public companies that have no employees. Hence, if the whistle is to be blown on fraud detrimental to mutual fund investors, the whistleblowing employee must be on another company's payroll, most likely the mutual fund adviser or manager. The District Court rejected FMR Corp. (FMR), which is privately held, its interpretation of §1513A, and denied the dismissal motions in both suits. On interlocutory appeal, the Court of Appeals reversed, holding that, although FMR is a contractor, it is prohibited from retaliating against such an employee when he engages in protected activity, and that, therefore, an employee is not covered by the statute. Held: 18 U S.C. §1614A whistleblower protection extends to employees of contractors, subcontractors, and brokerages. . (a) In determining the meaning of a statutory provision, first look to its ordinary words, and then to its plain meaning. Here, FMR uses the ordinary words of the statute to convey that a contractor may not discriminate against its own employee for whistleblowing. Absent any textual qualification, this reading is consistent with the statute and with common sense. Contractors are in control of their own employees, but are not ordinarily positioned to control someone else's workers. Moreover, Congress did not attach to itself a purpose to stop a contractor from retaliated against whistleblowers employed by a public company the contractor serves, while leaving the contractor free to retaliate against its own employees when they reveal corporate fraud. Cf., e.g., FMR. Pp. 467 U. S. 716. (b) The statutory text unambiguously affords protection to personal employees of public company officers and employees. Although lawyers and accountants are subject to extensive regulations and sanctions throughout the Act, there is no provision of the Act other than §16 that affords them protection from retaliation by their employers for complying with the Act's reporting requirements. FMR urges that the prohibition against an "officer" or anemployee" retaliating for an employee who retaliates against the employee may be read as imposing personal liability only on officers or employees who retaliate against other public company employees, and the legislative history supports the position advanced by FMR and the dissent, see post, at 14–16, that Congress intended to leave contractor employees vulnerable to discharge or other retaliatory action for compliance with the law. This reading is also supported by the fact that, at the time of the amendments to the Act to cover employees of companies rendering contract services to public companies, the Act was modeled after §42121, which protects employees of contractor sub-sidiaries and NRSROs. It is not surprising that Congress has not delegated its responsibility for interpreting statutes to the Securities and Exchange Commission (SEC), rather than to the Department of Labor. Nor is there any merit to FMR arguing that the statutory headings support the exclusion of contractor employees from §14A protections. There is no merit to the argument that, since the Act includes contractors as covered employers, the inclusion of such contractors does no more than make the contractor secondarily liable for complying with such marching orders, and since Congress apparently does not share FMRscerns about extending protection comprehensivelyto corporate whistleblowers. Rather, it appears that Congress presumed an employer-employee relationship between the retaliator and the whistleblower, and, in fact, that no such relationship exists here. Furthermore, the record supports the view that Congress was as focused on the role of Enron employees and their contractors in facilitating the fraud as it was on the actions of the public companies with whom they work, and did not intend to leave these professionals vulnerable to any disincentive action by the employees themselves. Thus, the argument is not entitled to deference because, if any agency has the authority to resolve ambiguities in §16 with the force of law, it must do so by the SEC, rather than by the DOL. And it is unlikely that Congress will follow the lead of the SEC in interpreting §16. Congress, in adopting its interpretation, has not given much weight to the interpretation of statutes that do not carry the same weight as the SEC does. In fact, the SEC has issued

2013_12-873

https://www.oyez.org/cases/2013/12-873

. This case requires us to decide whether respondent, Static Control Components, Inc., may sue petitioner, Lex- mark International, Inc., for false advertising under the Lanham Act, 15 U. S. C. §1125(a). I. Background Lexmark manufactures and sells laser printers. It also sells toner cartridges for those printers (toner being the powdery ink that laser printers use to create images on paper). Lexmark designs its printers to work only with its own style of cartridges, and it therefore dominates the market for cartridges compatible with its printers. That market, however, is not devoid of competitors. Other businesses, called “remanufacturers,” acquire used Lex- mark toner cartridges, refurbish them, and sell them in competition with new and refurbished cartridges sold by Lexmark. Lexmark would prefer that its customers return their empty cartridges to it for refurbishment and resale, rather than sell those cartridges to a remanufacturer. So Lexmark introduced what it called a “Prebate” program, which enabled customers to purchase new toner cartridges at a 20-percent discount if they would agree to return the cartridge to Lexmark once it was empty. Those terms were communicated to consumers through notices printed on the toner-cartridge boxes, which advised the consumer that opening the box would indicate assent to the terms—a practice commonly known as “shrinkwrap licensing,” see, e.g., ProCD, Inc. v. Zeidenberg, 86 F. 3d 1447, 1449 (CA7 1996). To enforce the Prebate terms, Lexmark included a microchip in each Prebate cartridge that would disable the cartridge after it ran out of toner; for the cartridge to be used again, the microchip would have to be replaced by Lexmark. Static Control is not itself a manufacturer or remanufacturer of toner cartridges. It is, rather, “the market leader [in] making and selling the components necessary to remanufacture Lexmark cartridges.” 697 F. 3d 387, 396 (CA6 2012) (case below). In addition to supplying remanufacturers with toner and various replacement parts, Static Control developed a microchip that could mimic the microchip in Lexmark’s Prebate cartridges. By purchasing Static Control’s microchips and using them to replace the Lexmark microchip, remanufacturers were able to refurbish and resell used Prebate cartridges. Lexmark did not take kindly to that development. In 2002, it sued Static Control, alleging that Static Control’s microchips violated both the Copyright Act of 1976, 17 U. S. C. §101 et seq., and the Digital Millennium Copyright Act, 17 U. S. C. §1201 et seq. Static Control counterclaimed, alleging, among other things, violations of §43(a) of the Lanham Act, 60Stat. 441, codified at 15 U. S. C. §1125(a). Section 1125(a) provides: “(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— “(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or “(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geo- graphic origin of his or her or another person’s goods, services, or commercial activities, “shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.” Section 1125(a) thus creates two distinct bases of liability: false association, §1125(a)(1)(A), and false advertising, §1125(a)(1)(B). See Waits v. Frito-Lay, Inc., 978 F. 2d 1093, 1108 (CA9 1992). Static Control alleged only false advertising. As relevant to its Lanham Act claim, Static Control alleged two types of false or misleading conduct by Lexmark. First, it alleged that through its Prebate program Lexmark “purposefully misleads end-users” to believe that they are legally bound by the Prebate terms and are thus required to return the Prebate-labeled cartridge to Lexmark after a single use. App. 31, ¶39. Second, it alleged that upon introducing the Prebate program, Lexmark “sent letters to most of the companies in the toner cartridge remanufacturing business” falsely advising those companies that it was illegal to sell refurbished Prebate cartridges and, in particular, that it was illegal to use Static Control’s products to refurbish those cartridges. Id., at 29, ¶35. Static Control asserted that by those statements, Lexmark had materially misrepresented “the nature, characteristics, and qualities” of both its own products and Static Control’s products. Id., at 43–44, ¶85. It further maintained that Lexmark’s misrepresentations had “proximately caused and [we]re likely to cause injury to [Static Control] by diverting sales from [Static Control] to Lexmark,” and had “substantially injured [its] business reputation” by “leading consumers and others in the trade to believe that [Static Control] is engaged in illegal conduct.” Id., at 44, ¶88. Static Control sought treble damages, attorney’s fees and costs, and injunctive relief. [ 1 ] The District Court granted Lexmark’s motion to dismiss Static Control’s Lanham Act claim. It held that Static Control lacked “prudential standing” to bring that claim, App. to Pet. for Cert. 83, relying on a multifactor balancing test it attributed to Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519 (1983) . The court emphasized that there were “more direct plaintiffs in the form of remanufacturers of Lexmark’s cartridges”; that Static Control’s injury was “remot[e]” because it was a mere “byproduct of the supposed manipulation of consumers’ relationships with remanufacturers”; and that Lexmark’s “alleged intent [was] to dry up spent cartridge supplies at the remanufacturing level, rather than at [Static Control]’s supply level, making remanufacturers Lexmark’s alleged intended target.” App. to Pet. for Cert. 83. The Sixth Circuit reversed the dismissal of Static Control’s Lanham Act claim. 697 F. 3d, at 423. Taking the lay of the land, it identified three competing approaches to determining whether a plaintiff has standing to sue under the Lanham Act. It observed that the Third, Fifth, Eighth, and Eleventh Circuits all refer to “antitrust standing or the [Associated General Contractors] factors in deciding Lanham Act standing,” as the District Court had done. Id., at 410 (citing Conte Bros. Automotive, Inc. v. Quaker State-Slick 50, Inc., 165 F. 3d 221, 233–234 (CA3 1998); Procter & Gamble Co. v. Amway Corp., 242 F. 3d 539, 562–563 (CA5 2001); Gilbert/Robinson, Inc. v. Carrie Beverage-Missouri, Inc., 989 F. 2d 985, 990–991 (CA8 1993); Phoenix of Broward, Inc. v. McDonald’s Corp., 489 F. 3d 1156, 1162–1164 (CA11 2007)). By contrast, “[t]he Seventh, Ninth, and Tenth [Circuits] use a categorical test, permitting Lanham Act suits only by an actual competitor.” 697 F. 3d, at 410 (citing L. S. Heath & Son, Inc. v. AT&T Information Systems, Inc., 9 F. 3d 561, 575 (CA7 1993); Waits, supra, at 1108–1109; Stanfield v. Osborne Industries, Inc., 52 F. 3d 867, 873 (CA10 1995)). And the Second Circuit applies a “ ‘reasonable interest’ approach,” under which a Lanham Act plaintiff “has standing if the claimant can demonstrate ‘(1) a reasonable interest to be protected against the alleged false advertising and (2) a reasonable basis for believing that the interest is likely to be damaged by the alleged false advertising.’ ” 697 F. 3d, at 410 (quoting Famous Horse, Inc. v. 5th Avenue Photo Inc., 624 F. 3d 106, 113 (CA2 2010)). The Sixth Circuit applied the Second Circuit’s reasonable-interest test and concluded that Static Control had standing because it “alleged a cognizable interest in its business reputation and sales to remanufacturers and sufficiently alleged that th[o]se interests were harmed by Lexmark’s statements to the remanufacturers that Static Control was engaging in illegal conduct.” 697 F. 3d, at 411. We granted certiorari to decide “the appropriate ana- lytical framework for determining a party’s standing to maintain an action for false advertising under the Lanham Act.” Pet. for Cert. i; 569 U. S. ____ (2013). [ 2 ] II. “Prudential Standing” The parties’ briefs treat the question on which we granted certiorari as one of “prudential standing.” Because we think that label misleading, we begin by clarifying the nature of the question at issue in this case. From Article III’s limitation of the judicial power to resolving “Cases” and “Controversies,” and the separation-of-powers principles underlying that limitation, we have deduced a set of requirements that together make up the “irreducible constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) . The plaintiff must have suffered or be imminently threatened with a concrete and particularized “injury in fact” that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision. Ibid. Lexmark does not deny that Static Control’s alle- gations of lost sales and damage to its business reputa- tion give it standing under Article III to press its false-advertising claim, and we are satisfied that they do. Although Static Control’s claim thus presents a case or controversy that is properly within federal courts’ Article III jurisdiction, Lexmark urges that we should decline to adjudicate Static Control’s claim on grounds that are “prudential,” rather than constitutional. That request is in some tension with our recent reaffirmation of the principle that “a federal court’s ‘obligation’ to hear and decide” cases within its jurisdiction “is ‘virtually unflagging.’ ” Sprint Communications, Inc. v. Jacobs, 571 U. S. ___, ___ (2013) (slip op., at 6) (quoting Colorado River Water Con-servation Dist. v. United States, 424 U. S. 800, 817 (1976) ). In recent decades, however, we have adverted to a “prudential” branch of standing, a doctrine not derived from Article III and “not exhaustively defined” but encompassing (we have said) at least three broad principles: “ ‘the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked.’ ” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 12 (2004) (quoting Allen v. Wright, 468 U. S. 737, 751 (1984) ). Lexmark bases its “prudential standing” arguments chiefly on Associated General Contractors, but we did not describe our analysis in that case in those terms. Rather, we sought to “ascertain,” as a matter of statutory interpretation, the “scope of the private remedy created by” Congress in §4 of the Clayton Act, and the “class of persons who [could] maintain a private damages action under” that legislatively conferred cause of action. 459 U. S., at 529, 532. We held that the statute limited the class to plaintiffs whose injuries were proximately caused by a defendant’s antitrust violations. Id., at 532–533. Later decisions confirm that Associated General Contractors rested on statutory, not “prudential,” considerations. See, e.g., Holmes v. Securities Investor Protection Corporation, 503 U. S. 258 –268 (1992) (relying on Associated General Contractors in finding a proximate-cause requirement in the cause of action created by the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §1964(c)); Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 456 (2006) (affirming that Holmes “relied on a careful interpretation of §1964(c)”). Lexmark’s arguments thus do not deserve the “prudential” label. Static Control, on the other hand, argues that we should measure its “prudential standing” by using the zone-of-interests test. Although we admittedly have placed that test under the “prudential” rubric in the past, see, e.g., Elk Grove, supra, at 12, it does not belong there any more than Associated General Contractors does. Whether a plain- tiff comes within “the ‘zone of interests’ ” is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83 , and n. 2 (1998); Clarke v. Securities Industry Assn., 479 U. S. 388 –395 (1987); Holmes, supra, at 288 (Scalia, J., concurring in judgment). As Judge Silberman of the D. C. Circuit recently observed, “ ‘prudential standing’ is a misnomer” as applied to the zone-of-interests analysis, which asks whether “this particular class of persons ha[s] a right to sue under this substantive statute.” Association of Battery Recyclers, Inc. v. EPA, 716 F. 3d 667, 675–676 (2013) (concurring opinion). [ 3 ] In sum, the question this case presents is whether Static Control falls within the class of plaintiffs whom Congress has authorized to sue under §1125(a). In other words, we ask whether Static Control has a cause of action under the statute. [ 4 ] That question requires us to determine the meaning of the congressionally enacted provision creating a cause of action. In doing so, we apply traditional principles of statutory interpretation. We do not ask whether in our judgment Congress should have authorized Static Control’s suit, but whether Congress in fact did so. Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied, see Alexander v. Sandoval, 532 U. S. 275 –287 (2001), it cannot limit a cause of action that Congress has created merely because “prudence” dictates. III. Static Control’s Right To Sue Under §1125(a) Thus, this case presents a straightforward question of statutory interpretation: Does the cause of action in §1125(a) extend to plaintiffs like Static Control? The statute authorizes suit by “any person who believes that he or she is likely to be damaged” by a defendant’s false advertising. §1125(a)(1). Read literally, that broad language might suggest that an action is available to anyone who can satisfy the minimum requirements of Article III. No party makes that argument, however, and the “unlikelihood that Congress meant to allow all factually injured plaintiffs to recover persuades us that [§1125(a)] should not get such an expansive reading.” Holmes, 503 U. S., at 266 (footnote omitted). We reach that conclusion in light of two relevant background principles already mentioned: zone of interests and proximate causality. A. Zone of Interests First, we presume that a statutory cause of action extends only to plaintiffs whose interests “fall within the zone of interests protected by the law invoked.” Allen, 468 U. S., at 751. The modern “zone of interests” formulation originated in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970) , as a limitation on the cause of action for judicial review conferred by the Administrative Procedure Act (APA). We have since made clear, however, that it applies to all statutorily created causes of action; that it is a “requirement of general application”; and that Congress is presumed to “legislat[e] against the background of” the zone-of-interests limitation, “which applies unless it is expressly negated.” Bennett v. Spear, 520 U. S. 154, 163 (1997) ; see also Holmes, supra, at 287–288 (Scalia, J., concurring in judgment). It is “perhaps more accurat[e],” though not very different as a practical matter, to say that the limitation always applies and is never negated, but that our analysis of certain statutes will show that they protect a more-than-usually “expan[sive]” range of interests. Bennett, supra, at 164. The zone-of-interests test is therefore an appropriate tool for determining who may invoke the cause of action in §1125(a). [ 5 ] We have said, in the APA context, that the test is not “ ‘especially demanding,’ ” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U. S. ___, ___ (2012) (slip op., at 15). In that context we have often “conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff,” and have said that the test “forecloses suit only when a plaintiff’s ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that’ ” Congress authorized that plaintiff to sue. Id., at ___ (slip op., at 15–16). That lenient approach is an appropriate means of preserving the flexibility of the APA’s omnibus judicial-review provision, which permits suit for violations of numerous statutes of varying character that do not themselves include causes of action for judicial review. “We have made clear, however, that the breadth of the zone of interests varies according to the provisions of law at issue, so that what comes within the zone of interests of a statute for purposes of obtaining judicial review of administrative action under the ‘ “generous review provisions” ’ of the APA may not do so for other purposes.” Bennett, supra, at 163 (quot- ing Clarke, 479 U. S., at 400, n. 16, in turn quoting Data Processing, supra, at 156). Identifying the interests protected by the Lanham Act, however, requires no guesswork, since the Act includes an “unusual, and extraordinarily helpful,” detailed statement of the statute’s purposes. H. B. Halicki Productions v. United Artists Communications, Inc., 812 F. 2d 1213, 1214 (CA9 1987). Section 45 of the Act, codified at 15 U. S. C. §1127, provides: “The intent of this chapter is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect registered marks used in such commerce from interference by State, or territorial legislation; to protect persons engaged in such commerce against unfair competition; to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks; and to provide rights and remedies stipulated by treaties and conventions respect- ing trademarks, trade names, and unfair competition entered into between the United States and foreign nations.” Most of the enumerated purposes are relevant to false-association cases; a typical false-advertising case will implicate only the Act’s goal of “protect[ing] persons engaged in [commerce within the control of Congress] against unfair competition.” Although “unfair competition” was a “plastic” concept at common law, Ely-Norris Safe Co. v. Mosler Safe Co., 7 F. 2d 603, 604 (CA2 1925) (L. Hand, J.), it was understood to be concerned with injuries to business reputation and present and future sales. See Rogers, Book Review, 39 Yale L. J. 297, 299 (1929); see generally 3 Restatement of Torts, ch. 35, Introductory Note, pp. 536–537 (1938). We thus hold that to come within the zone of interests in a suit for false advertising under §1125(a), a plaintiff must allege an injury to a commercial interest in reputation or sales. A consumer who is hoodwinked into purchasing a disappointing product may well have an injury-in-fact cognizable under Article III, but he cannot invoke the protection of the Lanham Act—a conclusion reached by every Circuit to consider the question. See Colligan v. Activities Club of N. Y., Ltd., 442 F. 2d 686, 691–692 (CA2 1971); Serbin v. Ziebart Int’l Corp., 11 F. 3d 1163, 1177 (CA3 1993); Made in the USA Foundation v. Phillips Foods, Inc., 365 F. 3d 278, 281 (CA4 2004); Procter & Gamble Co., 242 F. 3d, at 563–564; Barrus v. Sylvania, 55 F. 3d 468, 470 (CA9 1995); Phoenix of Broward, 489 F. 3d, at 1170. Even a business misled by a supplier into purchasing an inferior product is, like consumers generally, not under the Act’s aegis. B. Proximate Cause Second, we generally presume that a statutory cause of action is limited to plaintiffs whose injuries are proxi- mately caused by violations of the statute. For centuries, it has been “a well established principle of [the common] law, that in all cases of loss, we are to attribute it to the proximate cause, and not to any remote cause.” Waters v. Merchants’ Louisville Ins. Co., 11 Pet. 213, 223 (1837); see Holmes, 503 U. S., at 287 (Scalia, J., concurring in judgment). That venerable principle reflects the reality that “the judicial remedy cannot encompass every conceivable harm that can be traced to alleged wrongdoing.” Associ- ated Gen. Contractors, 459 U. S., at 536. Congress, we assume, is familiar with the common-law rule and does not mean to displace it sub silentio. We have thus construed federal causes of action in a variety of contexts to incorporate a requirement of proximate causation. See, e.g., Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 346 (2005) (securities fraud); Holmes, supra, at 268–270 (RICO); Associated Gen. Contractors, supra, at 529–535 (Clayton Act). No party disputes that it is proper to read §1125(a) as containing such a requirement, its broad language notwithstanding. The proximate-cause inquiry is not easy to define, and over the years it has taken various forms; but courts have a great deal of experience applying it, and there is a wealth of precedent for them to draw upon in doing so. See Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830 –839 (1996); Pacific Operators Offshore, LLP v. Valladolid, 565 U. S. ___, ___ (2012) (Scalia, J., concurring in part and concurring in judgment) (slip op., at 3). Proximate-cause analysis is controlled by the nature of the statutory cause of action. The question it presents is whether the harm alleged has a sufficiently close connection to the conduct the statute prohibits. Put differently, the proximate-cause requirement generally bars suits for alleged harm that is “too remote” from the defendant’s unlawful conduct. That is ordinarily the case if the harm is purely derivative of “misfortunes visited upon a third person by the defendant’s acts.” Holmes, supra, at 268–269; see, e.g., Hemi Group, LLC v. City of New York, 559 U. S. 1 –11 (2010). In a sense, of course, all commercial injuries from false advertising are derivative of those suffered by consumers who are deceived by the advertising; but since the Lanham Act authorizes suit only for commercial injuries, the intervening step of consumer deception is not fatal to the showing of proximate causation required by the statute. See Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F. 3d 787, 800–801 (CA5 2011). That is consistent with our recognition that under common-law principles, a plaintiff can be directly injured by a misrepresentation even where “a third party, and not the plaintiff, . . . relied on” it. Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. 639, 656 (2008) . We thus hold that a plaintiff suing under §1125(a) ordinarily must show economic or reputational injury flowing directly from the deception wrought by the defendant’s advertising; and that that occurs when deception of consumers causes them to withhold trade from the plaintiff. That showing is generally not made when the deception produces injuries to a fellow commercial actor that in turn affect the plaintiff. For example, while a competitor who is forced out of business by a defendant’s false advertising generally will be able to sue for its losses, the same is not true of the competitor’s landlord, its electric company, and other commercial parties who suffer merely as a result of the competitor’s “inability to meet [its] financial obligations.” Anza, 547 U. S., at 458. [ 6 ] C. Proposed Tests At oral argument, Lexmark agreed that the zone of in- terests and proximate causation supply the relevant background limitations on suit under §1125(a). See Tr. of Oral Arg. 4–5, 11–12, 17–18. But it urges us to adopt, as the optimal formulation of those principles, a multifactor balancing test derived from Associated General Contrac-tors. In the alternative, it asks that we adopt a categorical test permitting only direct competitors to sue for false advertising. And although neither party urges adoption of the “reasonable interest” test applied below, several amici do so. While none of those tests is wholly without merit, we decline to adopt any of them. We hold instead that a direct application of the zone-of-interests test and the proximate-cause requirement supplies the relevant limits on who may sue. The balancing test Lexmark advocates was first articulated by the Third Circuit in Conte Bros. and later adopted by several other Circuits. Conte Bros. identified five relevant considerations: “(1) The nature of the plaintiff’s alleged injury: Is the injury of a type that Congress sought to redress in providing a private remedy for violations of the [Lanham Act]? “(2) The directness or indirectness of the asserted injury. “(3) The proximity or remoteness of the party to the alleged injurious conduct. “(4) The speculativeness of the damages claim. “(5) The risk of duplicative damages or complexity in apportioning damages.” 165 F. 3d, at 233 (citations and internal quotation marks omitted). This approach reflects a commendable effort to give content to an otherwise nebulous inquiry, but we think it slightly off the mark. The first factor can be read as requiring that the plaintiff’s injury be within the relevant zone of interests and the second and third as requiring (somewhat redundantly) proximate causation; but it is not correct to treat those requirements, which must be met in every case, as mere factors to be weighed in a balance. And the fourth and fifth factors are themselves problem- atic. “[T]he difficulty that can arise when a court attempts to ascertain the damages caused by some remote action” is a “motivating principle” behind the proximate-cause requirement, Anza, supra, at 457–458; but potential diffi- culty in ascertaining and apportioning damages is not, as Conte Bros. might suggest, an independent basis for denying standing where it is adequately alleged that a defendant’s conduct has proximately injured an interest of the plaintiff’s that the statute protects. Even when a plaintiff cannot quantify its losses with sufficient certainty to re- cover damages, it may still be entitled to injunctive re- lief under §1116(a) (assuming it can prove a likelihood of future injury) or disgorgement of the defendant’s ill-gotten profits under §1117(a). See TrafficSchool.com, Inc. v. Edriver Inc., 653 F. 3d 820, 831 (CA9 2011); Johnson & Johnson v. Carter-Wallace, Inc., 631 F. 2d 186, 190 (CA2 1980). Finally, experience has shown that the Conte Bros. approach, like other open-ended balancing tests, can yield unpredictable and at times arbitrary results. See, e.g., Tushnet, Running the Gamut from A to B: Federal Trademark and False Advertising Law, 159 U. Pa. L. Rev. 1305, 1376–1379 (2011). In contrast to the multifactor balancing approach, the direct-competitor test provides a bright-line rule; but it does so at the expense of distorting the statutory language. To be sure, a plaintiff who does not compete with the defendant will often have a harder time establishing proximate causation. But a rule categorically prohibiting all suits by noncompetitors would read too much into the Act’s reference to “unfair competition” in §1127. By the time the Lanham Act was adopted, the common-law tort of unfair competition was understood not to be limited to actions between competitors. One leading authority in the field wrote that “there need be no competition in unfair competition,” just as “[t]here is no soda in soda water, no grapes in grape fruit, no bread in bread fruit, and a clothes horse is not a horse but is good enough to hang things on.” Rogers, 39 Yale L. J., at 299; accord, Vogue Co. v. Thompson-Hudson Co., 300 F. 509, 512 (CA6 1924); 1 H. Nims, The Law of Unfair Competition and Trade-Marks, p. vi (4th ed. 1947); 2 id., at 1194–1205. It is thus a mistake to infer that because the Lanham Act treats false advertising as a form of unfair competition, it can protect only the false-advertiser’s direct competitors. Finally, there is the “reasonable interest” test applied by the Sixth Circuit in this case. As typically formulated, it requires a commercial plaintiff to “demonstrate ‘(1) a reasonable interest to be protected against the alleged false advertising and (2) a reasonable basis for believing that the interest is likely to be damaged by the alleged false advertising.’ ” 697 F. 3d, at 410 (quoting Famous Horse, 624 F. 3d, at 113). A purely practical objection to the test is that it lends itself to widely divergent appli- cation. Indeed, its vague language can be understood as requiring only the bare minimum of Article III standing. The popularity of the multifactor balancing test reflects its appeal to courts tired of “grappl[ing] with defining” the “ ‘reasonable interest’ ” test “with greater precision.” Conte Bros., 165 F. 3d, at 231. The theoretical difficulties with the test are even more substantial: The relevant question is not whether the plaintiff’s interest is “reasonable,” but whether it is one the Lanham Act protects; and not whether there is a “reasonable basis” for the plaintiff’s claim of harm, but whether the harm alleged is proximately tied to the defendant’s conduct. In short, we think the principles set forth above will provide clearer and more accurate guidance than the “reasonable interest” test. IV. Application Applying those principles to Static Control’s false-advertising claim, we conclude that Static Control comes within the class of plaintiffs whom Congress authorized to sue under §1125(a). To begin, Static Control’s alleged injuries—lost sales and damage to its business reputation—are injuries to precisely the sorts of commercial interests the Act protects. Static Control is suing not as a deceived consumer, but as a “perso[n] engaged in” “commerce within the control of Congress” whose position in the marketplace has been damaged by Lexmark’s false advertising. §1127. There is no doubt that it is within the zone of interests protected by the statute. Static Control also sufficiently alleged that its injuries were proximately caused by Lexmark’s misrepresentations. This case, it is true, does not present the “classic Lanham Act false-advertising claim” in which “ ‘one competito[r] directly injur[es] another by making false statements about his own goods [or the competitor’s goods] and thus inducing customers to switch.’ ” Harold H. Huggins Realty, 634 F. 3d, at 799, n. 24. But although diversion of sales to a direct competitor may be the paradigmatic direct injury from false advertising, it is not the only type of injury cognizable under §1125(a). For at least two reasons, Static Control’s allegations satisfy the requirement of proximate causation. First, Static Control alleged that Lexmark disparaged its business and products by asserting that Static Control’s business was illegal. See 697 F. 3d, at 411, n. 10 (noting allegation that Lexmark “directly target[ed] Static Control” when it “falsely advertised that Static Control infringed Lexmark’s patents”). When a defendant harms a plaintiff’s reputation by casting aspersions on its business, the plaintiff’s injury flows directly from the audience’s belief in the disparaging statements. Courts have therefore afforded relief under §1125(a) not only where a defendant denigrates a plaintiff’s product by name, see, e.g., McNeilab, Inc. v. American Home Prods. Corp., 848 F. 2d 34, 38 (CA2 1988), but also where the defendant damages the product’s reputation by, for example, equat-ing it with an inferior product, see, e.g., Camel Hair and Cashmere Inst. of Am., Inc. v. Associated Dry Goods Corp., 799 F. 2d 6, 7–8, 11–12 (CA1 1986); PPX Enterprises, Inc. v. Audiofidelity, Inc., 746 F. 2d 120, 122, 125 (CA2 1984). Traditional proximate-causation principles support those results: As we have observed, a defendant who “ ‘seeks to promote his own interests by telling a known falsehood to or about the plaintiff or his product’ ” may be said to have proximately caused the plaintiff’s harm. Bridge, 553 U. S., at 657 (quoting Restatement (Second) of Torts §870, Comment h (1977); emphasis added in Bridge). The District Court emphasized that Lexmark and Static Control are not direct competitors. But when a party claims reputational injury from disparagement, competition is not required for proximate cause; and that is true even if the defendant’s aim was to harm its immediate competitors, and the plaintiff merely suffered collateral damage. Consider two rival carmakers who purchase airbags for their cars from different third-party manufacturers. If the first carmaker, hoping to divert sales from the second, falsely proclaims that the airbags used by the second carmaker are defective, both the second carmaker and its airbag supplier may suffer reputational injury, and their sales may decline as a result. In those circumstances, there is no reason to regard either party’s injury as de- rivative of the other’s; each is directly and independently harmed by the attack on its merchandise. In addition, Static Control adequately alleged proximate causation by alleging that it designed, manufactured, and sold microchips that both (1) were necessary for, and (2) had no other use than, refurbishing Lexmark toner cartridges. See App. 13, ¶31; id., at 37, ¶54. [ 7 ] It follows from that allegation that any false advertising that reduced the remanufacturers’ business necessarily injured Static Control as well. Taking Static Control’s assertions at face value, there is likely to be something very close to a 1:1 relationship between the number of refurbished Prebate cartridges sold (or not sold) by the remanufacturers and the number of Prebate microchips sold (or not sold) by Static Control. “Where the injury alleged is so integral an aspect of the [violation] alleged, there can be no question” that proximate cause is satisfied. Blue Shield of Va. v. McCready, 457 U. S. 465, 479 (1982) . To be sure, on this view, the causal chain linking Static Control’s injuries to consumer confusion is not direct, but includes the intervening link of injury to the remanufacturers. Static Control’s allegations therefore might not support standing under a strict application of the “ ‘ “general tendency” ’ ” not to stretch proximate causation “ ‘ “beyond the first step.” ’ ” Holmes, 503 U. S., at 271. But the reason for that general tendency is that there ordinarily is a “discontinuity” between the injury to the direct victim and the injury to the indirect victim, so that the latter is not surely attributable to the former (and thus also to the defendant’s conduct), but might instead have resulted from “any number of [other] reasons.” Anza, 547 U. S., at 458–459. That is not the case here. Static Control’s allegations suggest that if the remanufacturers sold 10,000 fewer refurbished cartridges because of Lexmark’s false advertising, then it would follow more or less automatically that Static Control sold 10,000 fewer microchips for the same reason, without the need for any “speculative . . . proceedings” or “intricate, uncertain inquiries.” Id., at 459–460. In these relatively unique circumstances, the remanufacturers are not “more immediate victim[s]” than Static Control. Bridge, supra, at 658. Although we conclude that Static Control has alleged an adequate basis to proceed under §1125(a), it cannot obtain relief without evidence of injury proximately caused by Lexmark’s alleged misrepresentations. We hold only that Static Control is entitled to a chance to prove its case. * * * To invoke the Lanham Act’s cause of action for false advertising, a plaintiff must plead (and ultimately prove) an injury to a commercial interest in sales or business reputation proximately caused by the defendant’s mis- representations. Static Control has adequately pleaded both elements. The judgment of the Court of Appeals is affirmed. It is so ordered. Notes 1 Lexmark contends that Static Control’s allegations failed to describe “commercial advertising or promotion” within the meaning of . That question is not before us, and we express no view on it. We assume without deciding that the communica-tions alleged by Static Control qualify as commercial advertising or promotion. 2 Other aspects of the parties’ sprawling litigation, including Lexmark’s claims under federal copyright and patent law and Static Control’s claims under federal antitrust and North Carolina unfair-competition law, are not before us. Our review pertains only to Static Control’s Lanham Act claim. 3 The zone-of-interests test is not the only concept that we have previously classified as an aspect of “prudential standing” but for which, upon closer inspection, we have found that label inapt. Take, for example, our reluctance to entertain generalized grievances—i.e., suits “claiming only harm to [the plaintiff’s] and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large.” Lujan v. Defenders of Wildlife, –574 (1992). While we have at times grounded our reluctance to entertain such suits in the “counsels of prudence” (albeit counsels “close[ly] relat[ed] to the policies reflected in” Article III), Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., , we have since held that such suits do not present constitutional “cases” or “controversies.” See, e.g., Lance v. Coffman, (per curiam); DaimlerChrysler Corp. v. Cuno, –346 (2006); Defenders of Wildlife, supra, at 573–574. They are barred for constitutional reasons, not “prudential” ones. The limitations on third-party standing are harder to classify; we have observed that third-party standing is “ ‘closely related to the question whether a person in the litigant’s position will have a right of action on the claim,’ ” Department of Labor v. Triplett, , n. ** (1990) (quoting Warth v. Seldin, , n. 12 (1975)), but most of our cases have not framed the inquiry in that way. See, e.g., Kowalski v. Tesmer, –129 (2004) (suggesting it is an element of “prudential standing”). This case does not present any issue of third-party standing, and consideration of that doctrine’s proper place in the standing firmament can await another day. 4 We have on occasion referred to this inquiry as “statutory standing” and treated it as effectively jurisdictional. See, e.g., Steel Co. v. Citizens for Better Environment, , and n. 2 (1998); cases citedid., at 114–117 (Stevens, J., concurring in judgment). That label is an improvement over the language of “prudential standing,” since it correctly places the focus on the statute. But it, too, is misleading, since “the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate the case.’ ” Verizon Md. Inc. v. Public Serv. Comm’n of Md., –643 (2002) (quoting Steel Co., supra, at 89); see also Grocery Mfrs. Assn. v. EPA, 693 F. 3d 169, 183–185 (Kavanaugh, J., dissenting), and cases cited therein; Pathak, Statutory Standing and the Tyranny of Labels, 62 Okla. L. Rev. 89, 106 (2009). 5 Although we announced the modern zone-of-interests test in 1971, its roots lie in the common-law rule that a plaintiff may not recover under the law of negligence for injuries caused by violation of a statute unless the statute “is interpreted as designed to protect the class of persons in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §36, pp. 229–230 (5th ed. 1984); see cases cited id., at 222–227; Gorris v. Scott, [1874] 9 L. R. Exch. 125 (Eng.). Statutory causes of action are regularly interpreted to incorporate standard common-law limitations on civil liability—the zone-of-interests test no less than the requirement of proximate causation, see Part III–B, infra. 6 Proximate causation is not a requirement of Article III standing, which requires only that the plaintiff’s injury be fairly traceable to the defendant’s conduct. Like the zone-of-interests test, see supra, at 8–9, and nn. 3–4, it is an element of the cause of action under the statute, and so is subject to the rule that “the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction.” Steel Co., 523 U. S., at 89. But like any other element of a cause of action, it must be adequately alleged at the pleading stage in order for the case to proceed. See Ashcroft v. Iqbal, –679 (2009). If a plaintiff’s allegations, taken as true, are insufficient to establish proximate causation, then the complaint must be dismissed; if they are sufficient, then the plaintiff is entitled to an opportunity to prove them. 7 We understand this to be the thrust of both sides’ allegations concerning Static Control’s design and sale of specialized microchips for the specific purpose of enabling the remanufacture of Lexmark’s Prebate cartridges.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus LEXMARK INTERNATIONAL, INC. v. STATIC CONTROL COMPONENTS, INC. certiorari to the united states court of appeals for the sixth circuit No. 12–873. Argued December 3, 2013—Decided March 25, 2014 Petitioner Lexmark sells the only style of toner cartridges that work with the company’s laser printers, but “remanufacturers” acquire and refurbish used Lexmark cartridges to sell in competition with Lexmark’s own new and refurbished ones. Lexmark’s “Prebate” program gives customers a discount on new cartridges if they agree to return empty cartridges to the company. Each Prebate cartridge has a microchip that disables the empty cartridge unless Lexmark replaces the chip. Respondent Static Control, a maker and seller of components for the remanufacture of Lexmark cartridges, developed a microchip that mimicked Lexmark’s. Lexmark sued for copyright infringement, but Static Control counterclaimed, alleging that Lexmark engaged in false or misleading advertising in violation of §43(a) of the Lanham Act, 15 U. S. C. §1125(a), and that its misrepresentations had caused Static Control lost sales and damage to its business reputation. The District Court held that Static Control lacked “prudential standing” to bring the Lanham Act claim, applying a multifactor balancing test the court attributed to Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519. In reversing, the Sixth Circuit relied on the Second Circuit’s “reasonable interest” test. Held: Static Control has adequately pleaded the elements of a Lanham Act cause of action for false advertising. . (a) The question here is whether Static Control falls within the class of plaintiffs that Congress authorized to sue under §1125(a). To decide that question, this Court must determine the provision’s meaning, using traditional principles of statutory interpretation. It is misleading to label this a “prudential standing” question. Lexmark bases its “prudential standing” arguments on Associated General Contractors, but that case rested on statutory considerations: The Court sought to “ascertain,” as a statutory-interpretation matter, the “scope of the private remedy created by” Congress in §4 of the Clayton Act, and the “class of persons who [could] maintain a private damages action under” that legislatively conferred cause of action, 459 U. S., at 529, 532. And while this Court may have placed the “zone of interests” test that Static Control relies on under the “prudential” rubric in the past, see, e.g., Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12, it does not belong there any more than Associated General Contractors does. Rather, whether a plaintiff comes within the zone of interests requires the Court to determine, using traditional statutory-interpretation tools, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim. See, e. g., Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 97, and n. 2. . (b) The §1125(a) cause of action extends to plaintiffs who fall within the zone of interests protected by that statute and whose injury was proximately caused by a violation of that statute. . (1) A statutory cause of action is presumed to extend only to plaintiffs whose interests “fall within the zone of interests protected by the law invoked.” Allen v. Wright, 468 U.S. 737, 751. “[T]he breadth of [that] zone . . . varies according to the provisions of law at issue.” Bennett v. Spear, 520 U.S. 154, 163. The Lanham Act includes a detailed statement of its purposes, including, as relevant here, “protect[ing] persons engaged in [commerce within the control of Congress] against unfair competition,” 15 U. S. C. §1127; and “unfair competition” was understood at common law to be concerned with injuries to business reputation and present and future sales. Thus, to come within the zone of interests in a §1125(a) false-advertising suit, a plaintiff must allege an injury to a commercial interest in reputation or sales. . (2) A statutory cause of action is also presumed to be limited to plaintiffs whose injuries are proximately caused by violations of the statute. See, e.g., Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 268–270. This requirement generally bars suits for alleged harm that is “too remote” from the defendant’s unlawful conduct, such as when the harm is purely derivative of “misfortunes visited upon a third person by the defendant’s acts.” Id., at 268–269. In a sense, all commercial injuries from false advertising are derivative of those suffered by consumers deceived by the advertising. But since the Lanham Act authorizes suit only for commercial injuries, the intervening consumer-deception step is not fatal to the proximate-cause showing the statute requires. Cf. Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 656. Thus, a plaintiff suing under §1125(a) ordinarily must show that its economic or reputational injury flows directly from the deception wrought by the defendant’s advertising; and that occurs when deception of consumers causes them to withhold trade from the plaintiff. . (3) Direct application of the zone-of-interests test and the proximate-cause requirement supplies the relevant limits on who may sue under §1125(a). These principles provide better guidance than the multifactor balancing test urged by Lexmark, the direct-competitor test, or the reasonable-interest test applied by the Sixth Circuit. . (c) Under these principles, Static Control comes within the class of plaintiffs authorized to sue under §1125(a). Its alleged injuries—lost sales and damage to its business reputation—fall within the zone of interests protected by the Act, and Static Control sufficiently alleged that its injuries were proximately caused by Lexmark’s misrepresentations. . 697 F.3d 387, affirmed. Scalia, J., delivered the opinion for a unanimous Court.

Respondent, a manufacturer and remanufacturer of toner cartridges for its printers, brought a class action in Federal District Court against petitioner, alleging, inter alia, that petitioner had violated the Lanham Act, 15 U.S.C. §1125(a), by using a microchip that could mimic the microchips in petitioner's prebate cartridges. The District Court granted petitioner's motion to dismiss the claim, but the Court of Appeals reversed, holding that respondent lacked "prudential standing" to bring that claim, relying on a multifactor balancing test attributed to Associated General Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519 (1983)). The court emphasized that there were more direct plaintiffs in the form of remanufacturers of petitioner's cartridges, and that the injury was remot[e] because it was a mere byproduct of the supposed manipulation of consumers' relationships with manufacturers. Held: 1. To come within the zone of interests in a suit for false advertising, a plaintiff must allege an injury to a commercial interest in reputation or sales. A consumer who is hoodwinked into purchasing a disappointing product may well have an injury-in-fact cognizable under Article III, but he cannot invoke the protection of that Act. . (a) Here, respondent has alleged injury to precisely the sorts of commercial interests the Act protects. It must show economic or reputational injury flowing directly from the deception wrought by the defendant's advertising; that occurs when deception of consumers causes them to withhold trade from the plaintiff; that showing is generally not made when the deception produces injuries to a fellow commercial actor that in turn affect the plaintiff. Moreover, respondent adequately alleged proximate causation by alleging that petitioner designed, manufactured, and sold microchippings that both (1) were necessary for, and (2) had no other use than, refurbishing the printer cartridges. The court concluded that it was likely to cause injury to respondent by causing it to diverge from petitioner by diverting sales from petitioner and by leading consumers and others in the trade to believe that petitioner is engaged in illegal conduct. This conclusion is supported by the zone-of-interests test, which allows the plaintiff to demonstrate a reasonable interest in a cause of action if a reasonable basis can be established by believing that the alleged injury is proximately caused by petitioner. And the test is an appropriate means of preserving the flexibility of the Act's omnibus judicial-review provision, which permits suit for violations of numerous statutes of varying character that do not themselves include causes of action for judicial review. Although the test correctly places the focus on the statute, it is misleading, since the proximate-cause requirement generally bars suits for alleged harm that is "too remote" from the statute's unlawful conduct, which is ordinarily the case if the harm is purely derivative of misfortune visited upon a third person by the defendants' mis- representations. Respondent also sufficiently alleged that its injuries were proximately caused by the misrepresentations. In contrast to the multifactor test, the direct-competitor test provides a bright-line rule, but it does so at the expense of distorting the statutory language.. 2. Respondent is entitled to a chance to prove its case, since it has adequately pleaded both elements of the asserted injury, viz., lost sales and damage to its business reputation. Pp. 468 U. K. 568. 3. To invoke the Act, a defendant must allege injury to an interest in sales or business reputation proximately causing the defendant to mis-demonstrate. To do so, the plaintiff must demonstrate an injury (i.e., loss of sales or damage to business reputation) to the interests protected by the statute. Such an injury is generally the case where the deception causes the consumer, as a matter of statutory interpretation and as a result of the defendant, to withhold the plaintiff from purchasing a defective product. However, in this case, there is likely to be something very close to a 1:1 relationship between the number of refurbished Prebate cartridge sold (or not sold) by the remanufacturing companies and the Number of Prebates microchipped sold by respondent. Application of these principles to respondent will provide clearer and more accurate guidance than the "reasonable interest" test. See, e.g., Sears v. Securities Investor Protection Corporation, 564, -- which requires that the plaintiff be a person who has suffered or be imminently threatened with a concrete and particularized injury in fact that is fairly traceable to the challenged action and likely redressed by a favorable judicial decision, and which is itself a problem- atic that is a factor to be weighed in a balancing analysis. Cf. Bellagrige v. Consumers for Better Environment,. . 4. Application Applying the principles set forth above to respondent

2013_12-786

https://www.oyez.org/cases/2013/12-786

. This case presents the question whether a defendant may be liable for inducing infringement of a patent under 35 U. S. C. §271(b) when no one has directly infringed the patent under §271(a) or any other statutory provision. The statutory text and structure and our prior case law require that we answer this question in the negative. We accordingly reverse the Federal Circuit, which reached the opposite conclusion. I A Respondent the Massachusetts Institute of Technology is the assignee of U. S. Patent No. 6,108,703 (’703 patent), which claims a method of delivering electronic data using a “content delivery network,” or “CDN.” Respondent Akamai Technologies, Inc., is the exclusive licensee. Akamai maintains many servers distributed in various locations. Proprietors of Web sites, known as “content providers,” contract with Akamai to deliver their Web sites’ content to individual Internet users. The ’703 patent provides for the designation of certain components of a content provider’s Web site (often large files, such as video or music files) to be stored on Akamai’s servers and accessed from those servers by Internet users. The process of designating components to be stored on Akamai’s servers is known as “tagging.” By “aggregat[ing] the data demands of multiple content providers with differing peak usage patterns and serv[ing] that content from multiple servers in multiple locations,” 614 F. Supp. 2d 90, 96 (Mass. 2009), as well as by delivering content from servers located in the same geographic area as the users who are attempting to access it, Akamai is able to increase the speed with which Internet users access the content of its customers’ Web sites. Petitioner Limelight Networks, Inc., also operates a CDN and carries out several of the steps claimed in the ’703 patent. But instead of tagging those components of its customers’ Web sites that it intends to store on its servers (a step included in the ’703 patent), Limelight requires its customers to do their own tagging.[1] Respondents claim that Limelight “provides instructions and offers technical assistance” to its customers regarding how to tag, 629 F. 3d 1311, 1321 (CA Fed. 2010), but the record is undisputed that Limelight does not tag the components to be stored on its servers. B In 2006, respondents sued Limelight in the United States District Court for the District of Massachusetts, claiming patent infringement. The case was tried to a jury, which found that Limelight had committed infringement and awarded more than $40 million in damages. Respondents’ victory was short-lived, however. After the jury returned its verdict, the Federal Circuit decided Muniauction, Inc. v. Thomson Corp., 532 F. 3d 1318 (2008). In that case the Court of Appeals rejected a claim that the defendant’s method, involving bidding on financial instruments using a computer system, directly infringed the plaintiff’s patent. The defendant performed some of the steps of the patented method, and its customers, to whom the defendant gave access to its system along with instructions on the use of the system, performed the remaining steps. The court started from “the proposition that direct infringement requires a single party to perform every step of a claimed method.” Id., at 1329. This requirement is satisfied even though the steps are actually undertaken by multiple parties, the court explained, if a single defendant “exercises ‘control or direction’ over the entire process such that every step is attributable to the controlling party.” Ibid. The court held that the defendant in Muniauction was not liable for direct infringement because it did not exercise control or direction over its customers’ performance of those steps of the patent that the defendant itself did not perform. Id., at 1330. In light of Muniauction, Limelight moved for reconsideration of its earlier motion for judgment as a matter of law, which the District Court had denied. The District Court granted the motion, concluding that Muniauction precluded a finding of direct infringement under §271(a) because infringement of the ’703 patent required tagging and Limelight does not control or direct its customers’ tagging. A panel of the Federal Circuit affirmed, explaining that a defendant that does not itself undertake all of a patent’s steps can be liable for direct infringement only “when there is an agency relationship between the parties who perform the method steps or when one party is contractually obligated to the other to perform the steps.” 629 F. 3d, at 1320. Since neither of these conditions was met in the present case, the Federal Circuit panel held that Limelight could not be held liable for direct infringement.[2] Ibid. The Federal Circuit granted en banc review and reversed. The en banc court found it unnecessary to revisit its §271(a) direct infringement case law. Instead, it concluded that the “evidence could support a judgment in [respondents’] favor on a theory of induced infringement” under §271(b). 692 F. 3d 1301, 1319 (2012) (per curiam). This was true, the court explained, because §271(b) liability arises when a defendant carries out some steps constituting a method patent and encourages others to carry out the remaining steps—even if no one would be liable as a direct infringer in such circumstances, because those who performed the remaining steps did not act as agents of, or under the direction or control of, the defendant. The Court of Appeals did not dispute that “there can be no indirect infringement without direct infringement,” id., at 1308, but it explained that “[r]equiring proof that there has been direct infringement . . . is not the same as requiring proof that a single party would be liable as a direct infringer,” id., at 1308–1309 (emphasis deleted). Judge Newman and Judge Linn both dissented (with the latter joined by Judges Dyk, Prost, and O’Malley). Limelight sought certiorari, which we granted. 571 U. S. ___ (2014). II A Neither the Federal Circuit, see 692 F. 3d, at 1308, nor respondents, see Tr. of Oral Arg. 44, dispute the proposition that liability for inducement must be predicated on direct infringement. This is for good reason, as our case law leaves no doubt that inducement liability may arise “if, but only if, [there is] . . . direct infringement.” Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U. S 336, 341 (1961) (emphasis deleted).[3] One might think that this simple truth is enough to dispose of this appeal. But the Federal Circuit reasoned that a defendant can be liable for inducing infringement under §271(b) even if no one has committed direct infringement within the terms of §271(a) (or any other provision of the patent laws), because direct infringement can exist independently of a violation of these statutory provisions. See 692 F. 3d, at 1314. The Federal Circuit’s analysis fundamentally misunderstands what it means to infringe a method patent. A method patent claims a number of steps; under this Court’s case law, the patent is not infringed unless all the steps are carried out. See, e.g., Aro, supra, at 344 (a “pat-ent covers only the totality of the elements in the claim and . . . no element, separately viewed, is within the grant”). This principle follows ineluctably from what a patent is: the conferral of rights in a particular claimed set of elements. “Each element contained in a patent claim is deemed material to defining the scope of the patented invention,” Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U. S. 17, 29 (1997) , and a patentee’s rights extend only to the claimed combination of elements, and no further. The Federal Circuit held in Muniauction that a method’s steps have not all been performed as claimed by the patent unless they are all attributable to the same de-fendant, either because the defendant actually performed those steps or because he directed or controlled others who performed them. See 532 F. 3d, at 1329–1330. Assuming without deciding that the Federal Circuit’s holding in Muniauction is correct, there has simply been no infringement of the method in which respondents have staked out an interest, because the performance of all the patent’s steps is not attributable to any one person. And, as both the Federal Circuit and respondents admit, where there has been no direct infringement, there can be no inducement of infringement under §271(b). The Federal Circuit’s contrary view would deprive §271(b) of ascertainable standards. If a defendant can be held liable under §271(b) for inducing conduct that does not constitute infringement, then how can a court assess when a patent holder’s rights have been invaded? What if a defendant pays another to perform just one step of a 12-step process, and no one performs the other steps, but that one step can be viewed as the most important step in the process? In that case the defendant has not encouraged infringement, but no principled reason prevents him from being held liable for inducement under the Federal Circuit’s reasoning, which permits inducement liability when fewer than all of a method’s steps have been performed within the meaning of the patent. The decision below would require the courts to develop two parallel bodies of infringement law: one for liability for direct infringement, and one for liability for inducement. Section 271(f)(1) reinforces our reading of §271(b). That subsection imposes liability on a party who “supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention . . . in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States” (emphasis added). As this provision illustrates, when Congress wishes to impose liability for inducing activity that does not itself constitute direct infringement, it knows precisely how to do so. The courts should not create liability for inducement of non-infringing conduct where Congress has elected not to extend that concept. The Federal Circuit seems to have adopted the view that Limelight induced infringement on the theory that the steps that Limelight and its customers perform would infringe the ’703 patent if all the steps were performed by the same person. But we have already rejected the notion that conduct which would be infringing in altered circumstances can form the basis for contributory infringement, and we see no reason to apply a different rule for inducement. In Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518 (1972) , a manufacturer produced components of a patented machine and then exported those components overseas to be assembled by its foreign customers.[4] (The assembly by the foreign customers did not violate U. S. patent laws.) In both Deepsouth and this case, the conduct that the defendant induced or contributed to would have been infringing if committed in altered circumstances: in Deepsouth if the machines had been assembled in the United States, see id., at 526, and in this case if performance of all of the claimed steps had been attributable to the same person. In Deepsouth, we rejected the possibility of contributory infringement because the machines had not been assembled in the United States, and direct infringement had consequently never occurred. See id., at 526–527. Similarly, in this case, performance of all the claimed steps cannot be attributed to a single person, so direct infringement never occurred. Limelight cannot be liable for inducing infringement that never came to pass. B Respondents’ arguments in support of the Federal Circuit’s reading of the statute are unpersuasive. First, respondents note that tort law imposes liability on a defendant who harms another through a third party, even if that third party would not himself be liable, and respondents contend that, given the background tort principles against which the Patent Act of 1952 was enacted, it should not matter that no one is liable for direct infringement in this case. But the reason Limelight could not have induced infringement under §271(b) is not that no third party is liable for direct infringement; the problem, instead, is that no direct infringement was committed. Muniauction (which, again, we assume to be correct) instructs that a method patent is not directly infringed—and the patentee’s interest is thus not violated—unless a single actor can be held responsible for the performance of all steps of the patent. Because Limelight did not undertake all steps of the ’703 patent and cannot otherwise be held responsible for all those steps, respondents’ rights have not been violated. Unsurprisingly, respondents point us to no tort case in which liability was imposed because a defendant caused an innocent third party to undertake action that did not violate the plaintiff’s legal rights. In a related argument, respondents contend that, at tort, liability sometimes attaches where two or more defendants inflict injury, even if each defendant’s conduct, standing alone, would not be actionable. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts §52, p. 354 (5th ed. 1984) (multiple defendants who each add negligible impurities to stream liable if aggregate impurities cause harm). But the rationale for imposing liability in these circumstances is that the defendants collectively invaded the plaintiff’s protected interests. See ibid. By contrast, under the Muniauction rule, respondents’ interests in the ’713 patent have not been invaded. Second, respondents seek to analogize §271(b) to the federal aiding and abetting statute, 18 U. S. C. §2, and they argue that two parties who divide all the necessary elements of a crime between them are both guilty under §2. The analogy does not hold up. The aiding and abetting statute must be read “against its common-law background,” Standefer v. United States, 447 U. S. 10, 19 (1980) , and at common law two or more defendants, each of whom committed an element of a crime, were liable as principals. See, e.g., 1 J. Bishop, Commentaries on the Criminal Law §649, p. 392 (7th ed. 1882). While we have drawn on criminal law concepts in the past in interpreting §271(b), see Global-Tech Appliances, Inc. v. SEB S. A., 563 U. S. ___, ___ (2011) (slip op., at 10–12), we think it unlikely that Congress had this particular doctrine in mind when it enacted the Patent Act of 1952, given the doctrine’s inconsistency with the Act’s cornerstone principle that patentees have a right only to the set of elements claimed in their patents and nothing further. Third, respondents contend that patent law principles established before the enactment of the Patent Act demonstrate that a defendant that performs some steps of a patent with the purpose of having its customers perform the remaining steps is liable for inducing infringement. But here, too, the nature of the rights created by the Pat-ent Act defeats the notion that Congress could haveintended to permit inducement liability where there is no underlying direct infringement. According to respondents, their understanding of the pre-1952 doctrine casts doubt on the Muniauction rule for direct infringement under §271(a), on the ground that that rule has the indirect effect of preventing inducement liability where Congress would have wanted it. But the possibility that the Federal Circuit erred by too narrowly circumscribing the scope of §271(a) is no reason for this Court to err a second time by misconstruing §271(b) to impose liability for inducing infringement where no infringement has occurred. Finally, respondents, like the Federal Circuit, criticize our interpretation of §271(b) as permitting a would-be infringer to evade liability by dividing performance of a method patent’s steps with another whom the defendant neither directs nor controls. We acknowledge this concern. Any such anomaly, however, would result from the Fed-eral Circuit’s interpretation of §271(a) in Muniauction. A desire to avoid Muniauction’s natural consequences does not justify fundamentally altering the rules of inducement liability that the text and structure of the Patent Act clearly require—an alteration that would result in its own serious and problematic consequences, namely, creating for §271(b) purposes some free-floating concept of “infringement” both untethered to the statutory text and difficult for the lower courts to apply consistently. III Respondents ask us to review the merits of the Federal Circuit’s Muniauction rule for direct infringement under §271(a). We decline to do so today. In the first place, the question presented is clearly focused on §271(b), not §271(a). We granted certiorari on the following question: “Whether the Federal Circuit erred in holding that a defendant may be held liable for inducing patent infringement under 35 U. S. C. §271(b) even though no one has committed direct infringement under §271(a).” Pet. for Cert. i. The question presupposes that Limelight has not committed direct infringement under §271(a). And since the question on which we granted certiorari did not involve §271(a), petitioner did not address that important issue in its opening brief. Our decision on the §271(b) question necessitates a remand to the Federal Circuit, and on remand, the Federal Circuit will have the opportunity to revisit the §271(a) question if it so chooses. IV The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 In its brief, Limelight disputes whether its customers actually “tag” within the meaning of the patent. Brief for Petitioner 7, n. 4. We assume that Limelight’s customers do in fact “tag” within the patent’s meaning. 2 The panel noted that Limelight’s contracts instruct its customers to tag the components they wish to be stored on Limelight’s CDN, but concluded that, because these contracts did not give Limelight control over its customers, the customers’ tagging could not be attributed to Limelight. See629 F. 3d, at 1321. 3 addressed contributory infringement under §271(c), rather than inducement of infringement under §271(b), but we see no basis to distinguish for these purposes between the two, which after all spring from common stock. Seev. , 563 U. S. ___, ___ (2011) (slip op., at 8). 4 Section 271(f) now prohibits the exporter’s conduct at issue in .

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus LIMELIGHT NETWORKS, INC. v. AKAMAI TECHNOLOGIES, INC., et al. certiorari to the united states court of appeals for the federal circuit No. 12–786. Argued April 30, 2014—Decided June 2, 2014 Akamai Technologies, Inc., a respondent here, is the exclusive licensee of a patent that claims a method of delivering electronic data using a content delivery network (CDN). Petitioner, Limelight Networks, Inc., also operates a CDN and carries out several of the steps claimed in the patent, but its customers, rather than Limelight itself, perform a step of the patent known as “tagging.” Under Federal Circuit case law, liability for direct infringement under 35 U. S. C. §271(a) requires performance of all steps of a method patent to be attributable to a single party. This position was most recently refined in Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318. The District Court concluded that Limelight could not have directly infringed the patent at issue because performance of the tagging step could not be attributed to it. The en banc Federal Circuit reversed, holding that a defendant who performed some steps of a method patent and encouraged others to perform the rest could be liable for inducement of infringement even if no one was liable for direct infringement. The en banc court concluded that the evidence could support liability for Limelight on an inducement theory and remanded for further proceedings. Held: A defendant is not liable for inducing infringement under §271(b) when no one has directly infringed under §271(a) or any other statutory provision. . (a) Liability for inducement must be predicated on direct infringement. Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 341. Assuming that Muniauction’s holding is correct, respondents’ method has not been infringed because the performance of all of its steps is not attributable to any one person. Since direct infringe-ment has not occurred, there can be no inducement of infringement under §271(b). The Federal Circuit’s contrary view would deprive §271(b) of ascertainable standards and require the courts to develop two parallel bodies of infringement law. This Court’s reading of §271(b) is reinforced by §271(f)(1), which illustrates that Congress knows how to impose inducement liability predicated on non-infringing conduct when it wishes to do so. The notion that conduct which would be infringing in altered circumstances can form the basis for contributory infringement has been rejected, see Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 526–527, and there is no reason to apply a different rule for inducement. . (b) Respondents claim that principles from tort law and criminal aiding and abetting doctrine, as well as patent law principles in existence before the 1952 Patent Act, support the Federal Circuit’s reading of the statute, but their arguments are unpersuasive. Though a would-be infringer could evade liability by dividing performance of a method patent’s steps with another whose conduct cannot be attributed to the defendant, this is merely a result of the Federal Circuit’s interpretation of §271(a), and a desire to avoid this consequence does not justify fundamentally altering the rules of inducement liability clearly required by the Patent Act’s text and structure. . (c) Because the question presented here is clearly focused on §271(b) and presupposes that Limelight has not committed direct infringement under §271(a), the Court declines to address whether the Federal Circuit’s decision in Muniauction is correct. P. 10. 692 F.3d 1301, reversed and remanded. Alito, J., delivered the opinion for a unanimous Court.

Respondent Massachusetts Institute of Technology is the assignee of U.S. Patent No. 6,108,703 (’703 patent), which provides for the designation of certain components of a content provider's Web site (often large files, such as video or music files) to be stored on the provider's servers and accessed from those servers by Internet users. Respondent Akamai Technologies, Inc., is the exclusive licensee, and maintains many servers distributed in various locations. Proprietors of Web sites contract with the provider to deliver their Web sites to individual Internet users, and the patent provides a process known as tagging, whereby the data demands of multiple content providers with differing peak usage patterns and serv[ing] that content from multiple servers in multiple locations are met. Respondents sued the provider in Federal District Court, claiming patent infringement. The case was tried to a jury, which found that the provider had committed infringement and awarded more than $40 million in damages. After the jury returned its verdict, the Federal Circuit decided Muniauction, Inc. v. Thomson Corp., 532 F. 3d 1318, which rejected a claim that the defendant's method, involving bidding on financial instruments using a computer system, directly infringed the plaintiff's patent. The court held that direct infringement requires a single party to perform every step of a claimed method, and that this requirement is satisfied even though the steps are actually undertaken by multiple parties if a single defendant exercises control or direction over the entire process such that every step is attributable to the controlling party. The Court of Appeals affirmed, but denied Limelight a motion for reconsideration of its §271(a) direct infringement law, concluding that a finding of direct infringement precluded Limelight from being liable for direct infringement because a patent agency does not undertake all steps of the patented method when neither the plaintiff nor the other parties can perform them. Held: A defendant may be liable for inducing infringement under 35 U. S. C. §271 (b) even though no one has directly infringed that patent, even though some of the steps were performed by the same person. The statutory text and structure and prior case law require that this question be answered in the negative. . 692 F.3d 1301, reversed and remanded. JUSTICE WHITE, joined by JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN, concurred in the judgment.

2013_13-316

https://www.oyez.org/cases/2013/13-316

. A provision of the federal bank fraud statute, 18 U. S. C. §1344(2), makes criminal a knowing scheme to obtain property owned by, or in the custody of, a bank “by means of false or fraudulent pretenses, representations, or promises.” The question presented is whether the Government must prove that a defendant charged with violating that provision intended to defraud a bank. We hold that the Government need not make that showing. I Petitioner Kevin Loughrin executed a scheme to convert altered or forged checks into cash. Pretending to be a Mormon missionary going door-to-door in a neighborhood in Salt Lake City, he rifled through residential mailboxes and stole any checks he found. Sometimes, he washed, bleached, ironed, and dried the checks to remove the existing writing, and then filled them out as he wanted; other times, he did nothing more than cross out the name of the original payee and add another. And when he was lucky enough to stumble upon a blank check, he completed it and forged the accountholder’s signature. Over several months, Loughrin made out six of these checks to the retailer Target, for amounts of up to $250. His modus operandi was to go to a local store and, posing as the accountholder, present an altered check to a cashier to purchase merchandise. After the cashier accepted the check (which, remarkably enough, happened time after time), Loughrin would leave the store, then turn around and walk back inside to return the goods for cash. Each of the six checks that Loughrin presented to Target was drawn on an account at a federally insured bank, including Bank of America and Wells Fargo. Employees in Target’s back office identified three of the checks as fraudulent, and so declined to submit them for payment. Target deposited the other three checks. The bank refused payment on one, after the accountholder notified the bank that she had seen a man steal her mail. Target appears to have received payment for the other two checks, though the record does not conclusively establish that fact. See Brief for United States 6, 7, n. 3. The Federal Government eventually caught up with Loughrin and charged him with six counts of committing bank fraud—one for each of the altered checks presented to Target. The federal bank fraud statute, 18 U. S. C. §1344, provides as follows: “Whoever knowingly executes, or attempts to execute, a scheme or artifice— (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises; shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.”[1] Ruling (for a reason not material here) that Circuit precedent precluded convicting Loughrin under the statute’s first clause, §1344(1), the District Court allowed the case to go to the jury on the statute’s second, §1344(2). The court instructed the jury that it could convict Loughrin under that clause if, in offering the fraudulent checks to Target, he had “knowingly executed or at-tempted to execute a scheme or artifice to obtain money or property from the [banks on which the checks were drawn] by means of false or fraudulent pretenses, representations, or promises.” App. 7. Loughrin asked as well for another instruction: The jury, he argued, must also find that he acted with “intent to defraud a financial institution.” App. to Pet. for Cert. 43a. The court, however, declined to give that charge, and the jury convicted Loughrin on all six counts. The United States Court of Appeals for the Tenth Circuit affirmed. See 710 F. 3d 1111 (2013). As relevant here, it rejected Loughrin’s argument that “a conviction under §1344(2) requires proof that he intended to defraud the banks on which the [altered] checks had been drawn.” Id., at 1115. That intent, the court reasoned, is necessary only under the bank fraud law’s first clause. The court acknowledged that under its interpretation, §1344(2) “cast[s] a wide net for bank fraud liability,” but concluded that such a result is “dictated by the plain language of the statute.” Id., at 1117. We granted certiorari, 571 U. S. ___ (2013), to resolve a Circuit split on whether §1344(2) requires the Government to show that a defendant intended to defraud a federally insured bank or other financial institution.[2] We now affirm the Tenth Circuit’s decision. II We begin with common ground. All parties agree, as do we and the Courts of Appeals, that §1344(2) requires that a defendant “knowingly execute[ ], or attempt[ ] to execute, a scheme or artifice” with at least two elements. First, the clause requires that the defendant intend “to obtain any of the moneys . . . or other property owned by, or under the custody or control of, a financial institution.” (We refer to that element, more briefly, as intent “to obtain bank property.”) Brief for United States 11, 17, 20, 22, 32; Brief for Petitioner 30–31. And second, the clause requires that the envisioned result—i.e., the obtaining of bank property—occur “by means of false or fraudulent pretenses, representations, or promises.” See Brief for United States 21–22; Reply Brief 18–19. Loughrin does not contest the jury instructions on either of those two elements. Nor does he properly challenge the sufficiency of the evidence supporting them here.[3] The single question presented is whether the Government must prove yet another element: that the defendant intended to defraud a bank. As Loughrin describes it, that element would compel the Government to show not just that a defendant intended to obtain bank property (as the jury here found), but also that he specifically intended to deceive a bank. See Reply Brief 17. And that difference, Loughrin claims, would have mattered in this case, because his intent to deceive ran only to Target, and not to any of the banks on which his altered checks were drawn. But the text of §1344(2) precludes Loughrin’s argument. That clause focuses, first, on the scheme’s goal (obtaining bank property) and, second, on the scheme’s means (a false representation). We will later address how the “means” component of §1344(2) imposes certain inherent limits on its reach. See infra, at 11–14. But nothing in the clause additionally demands that a defendant have a specific intent to deceive a bank. And indeed, imposing that requirement would prevent §1344(2) from applying to a host of cases falling within its clear terms. In particular, the clause covers property “owned by” the bank but in someone else’s custody and control (say, a home that the bank entrusted to a real estate company after foreclosure); thus, a person violates §1344(2)’s plain text by deceiving a non-bank custodian into giving up bank property that it holds. Yet under Loughrin’s view, the clause would not apply to such a case except in the (presumably rare) circumstance in which the fraudster’s intent to deceive extended beyond the custodian to the bank itself. His proposed inquiry would thus function as an extra-textual limit on the clause’s compass. And Loughrin’s construction of §1344(2) becomes yet more untenable in light of the rest of the bank fraud statute. That is because the first clause of §1344, as all agree, includes the requirement that a defendant intend to “defraud a financial institution”; indeed, that is §1344(1)’s whole sum and substance. See Brief for United States 18; Brief for Petitioner 8. To read the next clause, following the word “or,” as somehow repeating that requirement, even while using different words, is to disregard what “or” customarily means. As we have recognized, that term’s “ordinary use is almost always disjunctive, that is, the words it connects are to be given separate meanings.” United States v. Woods, 571 U. S. ___, ___ (2013) (slip op., at 14). Yet Loughrin would have us construe the two entirely distinct statutory phrases that the word “or” joins as containing an identical element. And in doing so, his interpretation would make §1344’s second clause a mere subset of its first: If, that is, §1344(2) implicitly required intent to defraud a bank, it would apply only to conduct already falling within §1344(1). Loughrin’s construction thus effectively reads “or” to mean “including”—a definition foreign to any dictionary we know of. As that account suggests, Loughrin’s view collides as well with more general canons of statutory interpretation. We have often noted that when “Congress includes particular language in one section of a statute but omits it in another”—let alone in the very next provision—this Court “presume[s]” that Congress intended a difference in meaning. Russello v. United States, 464 U. S. 16, 23 (1983) (citation omitted). And here, as just stated, overriding that presumption would render §1344’s second clause superfluous. Loughrin’s view thus runs afoul of the “cardinal principle” of interpretation that courts “must give effect, if possible, to every clause and word of a statute.” Williams v. Taylor, 529 U. S. 362, 404 (2000) (citation omitted).[4] III Loughrin makes two principal arguments to avoid the import of the statute’s plain text. First, he relies on this Court’s construction of comparable language in the federal mail fraud statute to assert that Congress intended §1344(2) merely to explicate the scope of §1344(1)’s prohibition on scheming to defraud a bank, rather than to cover any additional conduct. And second, he contends that unless we read the second clause in that duplicative way, its coverage would extend to a vast range of fraudulent schemes, thus intruding on the historic criminal jurisdiction of the States. Neither argument is without force, but in the end, neither carries the day. A “[D]espite appearances,” Loughrin avers, §1344(2) has no independent meaning: It merely specifies part of what §1344(1) already encompasses. Brief for Petitioner 8. To support that concededly counterintuitive argument, Loughrin invokes our decision in McNally v. United States, 483 U. S. 350 (1987) , interpreting similar language in the mail fraud statute, 18 U. S. C. §1341. That law, which served as a model for §1344, see Neder v. United States, 527 U. S. 1 –21 (1999), prohibits using the mail to further “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” Loughrin rightly explains that, despite the word “or,” McNally understood that provision as setting forth just one offense—using the mails to advance a scheme to defraud. The provision’s back half, we held, merely codified a prior judicial decision applying the front half: In other words, the back clarified that the front included certain conduct, rather than doing independent work. 483 U. S., at 358–359. According to Loughrin, we should read the bank fraud statute in the same way. But the two statutes, as an initial matter, have notable textual differences. The mail fraud law contains two phrases strung together in a single, unbroken sentence. By contrast, §1344’s two clauses have separate numbers, line breaks before, between, and after them, and equivalent indentation—thus placing the clauses visually on an equal footing and indicating that they have separate meanings. The legislative structure thus reinforces the usual (even if not McNally’s) understanding of the word “or” as meaning . . . well, “or”—rather than, as Loughrin would have it, “including.” Moreover, Loughrin’s reliance on McNally encounters a serious chronological problem. Congress passed the bank fraud statute in 1984, three years before we decided that case. And at that time, every Court of Appeals to have addressed the issue had concluded that the two relevant phrases of the mail fraud law must be read “in the disjunctive” and “construed independently.” 483 U. S., at 358 (citing, e.g., United States v. Clapps, 732 F. 2d 1148, 1152 (CA3 1984); United States v. States, 488 F. 2d 761, 764 (CA8 1973)). McNally disagreed, eschewing the most natural reading of the text in favor of evidence it found in the drafting history of the statute’s money-or-property clause. But the Congress that passed the bank fraud statute could hardly have predicted that McNally would overturn the lower courts’ uniform reading. We thus see no reason to doubt that in enacting §1344, Congress said what it meant and meant what it said, see Connecticut Nat. Bank v. Germain, 503 U. S. 249, 254 (1992) —i.e., that it both said “or” and meant “or” in the usual sense. And a peek at history, of the kind McNally found decisive, only cuts against Loughrin’s reading of the bank fraud statute. According to McNally, Congress added the mail fraud statute’s second, money-or-property clause merely to affirm a decision of ours interpreting the ban on schemes “to defraud”: The second clause, McNally reasoned, thus worked no substantive change in the law. See 483 U. S., at 356–359 (discussing Congress’s codification of Durland v. United States, 161 U. S. 306 (1896) ). By contrast, Congress passed the bank fraud statute to disapprove prior judicial rulings and thereby expand federal criminal law’s scope—and indeed, partly to cover cases like Loughrin’s. One of the decisions prompting enactment of the bank fraud law, United States v. Maze, 414 U. S. 395 (1974) , involved a defendant who used a stolen credit card to obtain food and lodging. (Substitute a check for a credit card and Maze becomes Loughrin.) The Government brought charges of mail fraud, relying on post-purchase mailings between the merchants and issuing bank to satisfy the statute’s mailing element. But the Court held those mailings insufficiently integral to the fraudulent scheme to support the conviction. See id., at 402. Hence, Maze created a “serious gap[ ] . . . in Federal jurisdiction over frauds against banks.” S. Rep. No. 98–225, p. 377 (1983). Congress passed §1344 to fill that gap, enabling the Federal Government to prosecute fraudsters like Maze and Loughrin. We will not deprive that enactment of its full effect because McNally relied on different history to adopt a counter-textual reading of a similar provision. B Loughrin also appeals to principles of federalism to support his proffered construction. Unless we read §1344(2) as requiring intent to defraud a bank, Loughrin contends, the provision will extend to every fraud, no matter how prosaic, happening to involve payment with a check—even when that check is perfectly valid. Consider, for example, a garden-variety con: A fraudster sells something to a customer, misrepresenting its value. There are countless variations, but let’s say the fraudster passes off a cheap knock-off as a Louis Vuitton handbag. The victim pays for the bag with a good check, which the criminal cashes. Voila!, Loughrin says, bank fraud has just happened—unless we adopt his narrowing construction. After all, the criminal has intended to “obtain . . . property . . . under the custody or control of” the bank (the money in the victim’s checking account), and has made “false or fraudulent . . . representations” (the lies to the victim about the handbag).[5] But if the bank fraud statute were to encompass all such schemes, Loughrin continues, it would interfere with matters “squarely within the traditional criminal jurisdiction of the state courts.” Brief for Petitioner 29. We should avoid such a “sweeping expansion of federal criminal” law, he concludes, by reading §1344(2), just like §1344(1), as requiring intent to defraud a bank. Reply Brief 3 (quoting Cleveland v. United States, 531 U. S. 12, 24 (2000) ). We agree with this much of what Loughrin argues: Unless the text requires us to do so, we should not construe §1344(2) as a plenary ban on fraud, contingent only on use of a check (rather than cash). As we have often (and recently) repeated, “we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction.” Bond v. United States, 572 U. S. ___, ___ (2014) (slip op., at 13) (quoting United States v. Bass, 404 U. S. 336, 349 (1971) ); see Cleveland, 531 U. S., at 24 (“We resist the Government’s reading . . . because it invites us to approve a sweeping expansion of federal criminal jurisdiction in the absence of a clear statement by Congress”); Jones v. United States, 529 U. S. 848, 858 (2000) (similar). Just such a rebalancing of criminal jurisdiction would follow from interpreting §1344(2) to cover every pedestrian swindle happening to involve payment by check, but in no other way affecting financial institutions. Indeed, even the Government expresses some mild discomfort with “federalizing frauds that are only tangentially related to the banking system.” Brief for United States 41. But in claiming that we must therefore recognize an invisible element, Loughrin fails to take account of a significant textual limitation on §1344(2)’s reach. Under that clause, it is not enough that a fraudster scheme to obtain money from a bank and that he make a false statement. The provision as well includes a relational component: The criminal must acquire (or attempt to acquire) bank property “by means of” the misrepresentation. That phrase typically indicates that the given result (the “end”) is achieved, at least in part, through the specified action, instrument, or method (the “means”), such that the connection between the two is something more than oblique, indirect, and incidental. See, e.g., Webster’s Third New International Dictionary 1399 (2002) (defining “by means of” as “through the instrumentality of: by the use of as a means”); 9 Oxford English Dictionary 516 (2d ed. 1989) (defining “means” as “[a]n instrument, agency, method, or course of action, by the employment of which some object is or may be attained, or which is concerned in bringing about some result”). In other words, not every but-for cause will do. If, to pick an example out of a hat, Jane traded in her car for money to take a bike trip cross-country, no one would say she “crossed the Rockies by means of a car,” even though her sale of the car somehow figured in the trip she took. The relation between those things would be (as the Government puts it) too “tangential[ ]” to make use of the phrase at all appropriate. Brief for United States 41. Section 1344(2)’s “by means of” language is satisfied when, as here, the defendant’s false statement is the mechanism naturally inducing a bank (or custodian of bank property) to part with money in its control. That occurs, most clearly, when a defendant makes a misrepresentation to the bank itself—say, when he attempts to cash, at the teller’s window, a forged or altered check. In that event, the defendant seeks to obtain bank property by means of presenting the forgery directly to a bank em-ployee. But no less is the counterfeit check the “means” of obtaining bank funds when a defendant like Loughrin offers it as payment to a third party like Target.[6] After all, a merchant accepts a check only to pass it along to a bank for payment; and upon receipt from the merchant, that check triggers the disbursement of bank funds just as if presented by the fraudster himself. So in either case, the forged or altered check—i.e., the false statement—serves in the ordinary course as the means (or to use other words, the mechanism or instrumentality) of obtaining bank property. To be sure, a merchant might detect the fraud (as Target sometimes did) and decline to submit the forged or altered check to the bank. But that is to say only that the defendant’s scheme to obtain bank property by means of a false statement may not succeed. And we have long made clear that such failure is irrelevant in a bank fraud case, because §1344 punishes not “completed frauds,” but instead fraudulent “scheme[s].” Neder, 527 U. S., at 25. By contrast, the cases Loughrin hopes will unnerve us—exemplified by the handbag swindle—do not satisfy §1344(2)’s “means” requirement.[7] Recall that in such a case the check is perfectly valid; so the check itself is not (as it was here) a false or fraudulent means of obtaining bank money. And the false pretense that has led, say, the handbag buyer to give a check to the fraudster has nothing to do with the bank that will cash it: No one would dream of passing on to the bank (as Target would forward a forged check) the lie that a knock-off is a Louis Vuitton. The bank’s involvement in the scheme is, indeed, wholly fortuitous—a function of the victim’s paying the fraudster by (valid) check rather than cash. Of course, the bank would not have disbursed funds had the misrepresentation never occurred, and in that sense, the lie counts as a but-for cause of the bank’s payment. But as we have said, §1344(2)’s “by means of” language requires more, see supra, at 11–12: It demands that the defendant’s false statement is the mechanism naturally inducing a bank (or custodian) to part with its money. And in cases like the handbag swindle, where no false statement will ever go to a financial institution, the fraud is not the means of obtaining bank property.[8] The premise of Loughrin’s federalism argument thus collapses. He claims that we must import an unstated element into §1344(2) to avoid covering run-of-the-mill frauds, properly of concern only to States. But in fact, the text of §1344(2) already limits its scope to deceptions that have some real connection to a federally insured bank, and thus implicate the pertinent federal interest. See S. Rep. No. 98–225, at 378 (noting that federal “jurisdiction is based on the fact that the victim of the offense is a federally controlled or insured institution”). And Loughrin’s own crime, as we have explained, is one such scheme, because he made false statements, in the form of forged and altered checks, that a merchant would, in the ordinary course of business, forward to a bank for payment. See supra, at 12–13. We therefore reject Loughrin’s reading of §1344(2) and his challenge to his conviction.[9] For the reasons stated, we affirm the judgment of the Tenth Circuit. It is so ordered.Notes 1 A “financial institution,” as defined in , includes a federally insured bank of the kind involved here. 2 Compare 710 F. 3d 1111, 1116 (CA10 2013) (case below) (§1344(2) does not require intent to defraud a bank); v, 270 F. 3d 986, 991 (CA6 2001) (same), with v. , 315 F. 3d 190, 197 (CA3 2002) (§1344(2) requires such intent); v. , 221 F. 3d 19, 29 (CA1 2000) (same); v. , 117 F. 3d 82, 92–93 (CA2 1997) (same). 3 Loughrin argued to the jury that the evidence failed to show that he intended to obtain bank property: He claimed that once he “obtained cash from Target, . . . he was indifferent to whether Target ever submitted the check to a bank or whether a bank ever made payment on it.” Brief for Petitioner 32; see Tr. 233–235; App. to Pet. for Cert. 46a. The jury rejected that contention, as did the District Court on a motion for judgment of acquittal. See Record 168.In his appeal, Loughrin waived the argument by conceding that if the District Court correctly instructed the jury on §1344(2)’s elements, “then there was sufficient evidence to convict.” Appellant’s Opening Brief in No. 11–4158 (CA10), p. 34. And although Loughrin’s briefs to this Court attempt to cast doubt on the jury’s finding that he intended to obtain bank property, see Brief for Petitioner 30–32, that issue is not “fairly included” in the question his certiorari petition presented, Sup. Ct. R. 14.1(a). 4 Loughrin responds that our interpretation of the statute creates a converse problem of superfluity: Clause (2), he says, would emerge so broad as to wholly swallow Clause (1). See Reply Brief 7. But that is not right. The Courts of Appeals, for example, have unanimously agreed that the Government can prosecute check kiting (,writing checks against an account with insufficient funds in a way designed to keep them from bouncing) only under Clause (1), because such schemes do not involve any false representations. See Tr. of Oral Arg. 46–47; see, v. , 969 F. 2d 425, 427–428 (CA7 1992) (citing v, –285 (1982)). No doubt, the overlap between the two clauses is substantial on our reading, but that is not uncommon in criminal statutes. See, ,v, , n. 14 (1995). 5 One might think the Federal Government would never use the bank fraud statute to prosecute such ordinary frauds just because they happen to involve payment by check rather than cash. But in fact, the Government has brought a number of cases alleging violations of §1344(2) on that theory (so far, it appears, unsuccessfully). See, , 315 F. 3d 190 (a home health care worker got a valid check from a patient to buy groceries, but then cashed the check and pocketed the money); v. , 140 F. 3d 163 (CA2 1998) (an employee filed fake invoices with her employer, causing the company to issue valid checks to her friend for services never rendered). 6 The Government in such a case may, of course, face the separate claim that the defendant did not intend to obtain bank property at all: As noted earlier, Loughrin argued this point to the jury, contending (unsuccessfully) that he merely wanted to get cash from Target. See n. 3, . All we say here, for the reasons next stated, is that when the defendant has the requisite intent to acquire bank property, his presentation of a forged or altered check to a third party satisfies §1344(2)’s “means” requirement. 7 Even the Government, we note, acknowledges that §1344(2) is reasonably read to exclude such cases from its coverage. See Brief for United States 40–44; Tr. of Oral Arg. 43–47. 8 takes issue with our limitation of §1344(2), contending first that the fraudster’s “indifferen[ce] to the victim’s method of payment” does not “cause what is a means not to be a means.” ,at 2–3 (opinion concurring in part and concurring in judgment) (emphasis deleted). To illustrate the point, he offers an example: Someone “obtain[s] 7-Eleven coffee by means of [his] two dollars” even if he went to 7-Eleven rather than Sheetz only because it happened to be the closest. at 3. But that objection is based on a misunderstanding of our opinion. The “by means of” phrase calls for an inquiry into the directness of the relationship between means and ends, not the fraudster’s subjective intent. (We take it agrees; he recognizes that “not every but-for cause of an act is a cause ‘by means of’ which the act has occurred.” ,at 2.) And we concur with the bottom line of sexample: There, the means (the two dollars) is the thing that achieves the specified end (getting the cup of 7-Eleven coffee). By contrast, for the reasons elaborated above, the misstatement in our handbag hypothetical is not the mechanism by which the fraudster obtains property, given that the lie will never reach the bank. 9 As a last-gasp argument, Loughrin briefly asserts that §1344(2) at least requires the Government to prove that the defendant’s scheme created a risk of financial loss to the bank. See Brief for Petitioner 36–40. But once again, nothing like that element appears in the clause's text. Indeed, the broad language in §1344(2) describing the property at issue—“property owned by or under the custody or control of” a bank—appears calculated to avoid entangling courts in technical issues of banking law about whether the financial institution or, alternatively, a depositor would suffer the loss from a successful fraud. See v. , 699 F. 3d 743, 754 (CA2 2012) (Lynch, J., concurring in part and concurring in judgment in part). And Loughrin’s argument fits poorly with our prior holding that the gravamen of §1344 is the “scheme,” rather than “the completed fraud,” and that the offense therefore does not require “damage” or “reliance.” v. , ; see at 13.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus LOUGHRIN v. UNITED STATES certiorari to the united states court of appeals for the tenth circuit No. 13–316. Argued April 1, 2014—Decided June 23, 2014 A part of the federal bank fraud statute, 18 U. S. C. §1344(2), makes it a crime to “knowingly execut[e] a scheme . . . to obtain” property owned by, or under the custody of, a bank “by means of false or fraudulent pretenses.” Petitioner Kevin Loughrin was charged with bank fraud after he was caught forging stolen checks, using them to buy goods at a Target store, and then returning the goods for cash. The District Court declined to give Loughrin’s proposed jury instruction that a conviction under §1344(2) required proof of “intent to defraud a financial institution.” The jury convicted Loughrin, and the Tenth Circuit affirmed. Held: Section 1344(2) does not require the Government to prove that a defendant intended to defraud a financial institution. . (a) Section 1344(2) requires only that the defendant intend to obtain bank property and that this end is accomplished “by means of” a false statement. No additional requirement of intent to defraud a bank appears in the statute’s text. And imposing that requirement would prevent §1344(2) from applying to cases falling within the statute’s clear terms, such as frauds directed against a third-party custodian of bank-owned property. Loughrin’s construction would also make §1344(2) a mere subset of §1344(1), which prohibits any scheme “to defraud a financial institution.” That view is untenable because those clauses are separated by the disjunctive “or,” signaling that each is intended to have separate meaning. And to read clause (1) as fully encompassing clause (2) contravenes two related interpretive canons: that different language signals different meaning, and that no part of a statute should be superfluous. . (b) Loughrin claims that his view is supported by similar language in the federal mail fraud statute and by federalism principles, but his arguments are unpersuasive. . (1) In McNally v. United States, 483 U.S. 350, this Court interpreted similar language in the mail fraud statute, §1341—which served as a model for §1344—to set forth just one offense, despite the use of the word “or.” But the two statutes have notable textual differences. The mail fraud law contains two phrases strung together in a single, unbroken sentence, whereas §1344’s two clauses have separate numbering, line breaks, and equivalent indentation—all indications of separate meaning. Moreover, Congress likely did not intend to adopt McNally’s interpretation when it enacted §1344, because at that time (three years before McNally) every Court of Appeals had interpreted the word “or” in the mail fraud statute in its usual, disjunctive sense. And while McNally found that unique features of the mail fraud statute’s history supported its view, the legislative history surrounding the adoption of §1344 points the other way. . (2) Loughrin also contends that without an element of intent to defraud a bank, §1344(2) would apply to every minor fraud in which the victim happens to pay by check. This, he says, would unduly expand the reach of federal criminal law into an area traditionally left to the States. But this argument ignores a significant textual limit on §1344(2)’s reach: The criminal must acquire (or attempt to acquire) the bank property “by means of” the misrepresentation. That language limits §1344(2)’s application to cases (like this one) in which the misrepresentation has some real connection to a federally insured bank, and thus to the pertinent federal interest. . 710 F.3d 1111, affirmed. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Parts I and II, Part III–A except the last paragraph, and the last footnote of Part III–B. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment.

Petitioner Loughrin devised a scheme to convert checks drawn on an account at a federally insured bank into checks, and he made out six of the checks for amounts of up to $250. Each of the six checks that he presented to the bank was drawn on the account of an account of the bank, including Bank of America and Wells Fargo. Employees in the bank identified three of the fraudulent checks as fraudulent, and so declined to submit them for payment. The bank refused payment on one, after the accountholder notified the bank that she had seen a man steal her mail. The Federal Government eventually caught up with petitioner and charged him with six counts of committing bank fraud under the federal bank fraud statute, 18 U.S. C. §1344(2), which makes criminal a knowing scheme to obtain property owned by, or in the custody of, a bank by means of false or fraudulent pretenses, representations, or promises. The District Court allowed the case to go to the jury on the statute's second clause, which instructed the jury that it could convict petitioner under that clause if it found that he hadknowingly executed or at-tempted to execute a scheme or artifice to obtain money or property from the bank on which the checks were drawn by the means of such pretenses. The jury convicted petitioner on all six counts. The Court of Appeals affirmed. Held: The Government need not prove that petitioner intended to defraud a bank. . (a) The statute requires that a defendant knowingly execute, or attempt[ ] to execute, a scheme and artifice with at least two elements. First, the clause requires that the defendant intend to obtain any of the moneys... owned by or under the custody or control of a financial institution. And second, that the envisioned result (i.e., the obtaining of bank property) must (1) occur by means (2) false pretenses or representations. Petitioner does not contest the jury instructions on either of these elements. Nor does he properly challenge the sufficiency of the evidence supporting them here. P.. (b) The text of the statute precludes petitioner from arguing that the evidence failed to show that he intended to obtain bank property. Nothing in the clause additionally demands that petitioner have a specific intent to deceive a bank, and imposing that requirement would prevent the statute from applying to a host of cases falling within its clear terms. Cf., e.g., McNally v. United States, 483 U. S. 350 (1987), which held that the first clause of § 1344(1) includes the requirement that a bank commit fraud, contingent only on use of a check (rather than cash). To read the second clause as somehow repeating that requirement, even while using different words, is to disregard what the word customarily customarily means. McNally, supra, at 358. Moreover, the legislative structure reinforces the usual (even if not McNally's) understanding of the word "or" as meaning well, well, "or," rather than, as petitioner would have it, including the provision that a fraudster will not go to a bank unless he makes a false statement. The fact that the fraudster has made false statements, in the form of forged and altered checks, to induce a bank to part with money in its control is irrelevant in a bank fraud case, since §1343 punishes not only fraudulent frauds, but also fraudulent schemes such as the handbag swindle, in which the victim pays for the bag with a good check, which the criminal cashes. In contrast, the counterfeit check does not satisfy the section's requirement, since the check itself is perfectly valid, and the false pretense that has led the victim to give a check to the fraudsters has nothing to do with the bank that will cash it: No one would dream of passing on to the customer a check that is a knockoff of a bank-accursed knockoff, but rather a bank employee would have had to pay for groceries by a hand-bashing check. Even the Government acknowledges that the provision is reasonably read to exclude cases such as petitioner's, which involve deceptions that have some real connection to federally insured banks, and thus implicate the pertinent federal interest. But even the Government concedes that its limitation would render §1346(2) in that duplicative way, since its coverage would extend to a vast range of fraudulent schemes, thus intruding on the historic criminal jurisdiction of the States. See, e. g., id., at 402. To support petitioner's argument that the Government should not rely on McNally to support its construction that the statutory provision will extend to every fraud, no matter how prosaic, happening to involve payment with a check, even when that check is perfectly invalid, would undermine the usual rule of interpretation that courts must give effect, if possible, to every clause

2013_12-820

https://www.oyez.org/cases/2013/12-820

. When a parent abducts a child and flees to another country, the Hague Convention on the Civil Aspects of International Child Abduction generally requires that country to return the child immediately if the other parent requests return within one year. The question in this case is whether that 1-year period is subject to equitable tolling when the abducting parent conceals the child’s location from the other parent. We hold that equitable tolling is not available. I To address “the problem of international child abductions during domestic disputes,” Abbott v. Abbott, 560 U. S. 1, 8 (2010) , in 1980 the Hague Conference on Private International Law adopted the Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention), T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11 (Treaty Doc.). The Convention states two primary objectives: “to secure the prompt return of children wrongfully removed to or retained in any Contracting State,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Art. 1, id.,at 7. To those ends, the Convention’s “central operating feature” is the return of the child. Abbott, 560 U. S., at 9. That remedy, in effect, lays venue for the ultimate custody determination in the child’s country of habitual residence rather than the country to which the child is abducted. See id., at 20 (“The Convention is based on the principle that the best interests of the child are well served when de-cisions regarding custody rights are made in the countryof habitual residence”). The return remedy is not absolute. Article 13 excuses return where, for example, the left-behind parent was not “actually exercising” custody rights when the abducting parent removed the child, or where there is a “grave risk” that return would “place the child in an intolerable situation.” Hague Convention, Arts. 13(a)–(b), Treaty Doc., at 10. A state may also refuse to return the child if doingso would contravene “fundamental principles . . . relating to the protection of human rights and fundamental freedoms.” Art. 20, id., at 11. This case concerns another exception to the return remedy. Article 12 of the Convention states the general rule that when a court receives a petition for return within one year after the child’s wrongful removal, the court “shall order the return of the child forthwith.” Id., at 9. Article 12 further provides that the court, “where the proceedings have been commenced after the expiration of the period of one year [from the date of the wrongful removal], shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” Ibid. Thus, at least in some cases, failure to file a petitionfor return within one year renders the return remedy unavailable. The United States ratified the Hague Convention in 1988, and Congress implemented the Convention that same year through the International Child Abduc-tion Remedies Act (ICARA). 102Stat. 437, 42 U. S. C. §§11601–11610. That statute instructs courts to “decide the case in accordance with the Convention.” §11603(d). Echoing the Convention, ICARA further provides that “[c]hildren who are wrongfully removed . . . are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies.” §11601(a)(4). Finally, ICARA requires the abducting parent to establish by a preponderance of the evidence that Article 12’s exception to return applies. §11603(e)(2)(B). II Diana Lucia Montoya Alvarez and Manuel Jose Lozano are the parents of the girl at the center of this dispute.[1] Montoya Alvarez and Lozano met and began dating in London in early 2004. Montoya Alvarez gave birth to a daughter in October 2005. Montoya Alvarez and Lozano describe their relationship in starkly different terms. Lozano stated that they were “ ‘very happy together,’ ” albeit with “normal couple problems.” In re Lozano, 809 F. Supp. 2d 197, 204 (SDNY 2011). Montoya Alvarez described a pattern of physical and emotional abuse that included multiple incidents of rape and battery. The District Court found insufficient evidence to make specific findings about domestic violence but determined that Lozano’s claim that he never mistreated Montoya Alvarez was “not credible.” Id., at 206. The parties also differ as to the child’s well-being during the first three years of her life. Lozano stated that he and the child had a very good relationship, and that the child was generally happy. Montoya Alvarez believed otherwise. In October 2008, Montoya Alvarez reported to the child’s doctor that she refused to speak at the nursery she attended, cried often, and wet the bed. Montoya Alvarez also stated that the child refused to speak when Lozano was present. The child’s nursery manager wrote that the girl was “ ‘very withdrawn,’ ” and noted that the home “ ‘environment obviously had a negative effect’ ” on her. Id., at 207. The District Court found insufficient evidence that Lozano had physically abused the child, but did conclude that the child had seen and heard her parents arguing at home. In November 2008, when the child was just over three years old, Montoya Alvarez went to New York to visit her sister Maria. During that time, the child remained in London with Lozano and his visiting mother. When Montoya Alvarez returned on November 18, she became acutely concerned about the child’s fearful behavior around Lo-zano. The next day, Montoya Alvarez left with the child and never returned. Montoya Alvarez and the child lived at a women’s shelter for the next seven months. After Montoya Alvarez was unable to find suitable long-term accommodations in the United Kingdom, she and the child left for France on July 3, 2009, and then for the United States, arriving five days later. Since their arrival, Montoya Alvarez and the child have lived with Montoya Alvarez’ sister Maria and her family in New York. When they arrived in New York, Montoya Alvarez and the child began seeing a therapist at a family medical clinic. The therapist testified that, at first, the child was withdrawn and would wet herself. The therapist diagnosed her with posttraumatic stress disorder. Within six months, however, the therapist described her as “ ‘a completely different child,’ ” who had stopped wetting herself, was excited to play with friends, and was able to speak freely about her emotions. Id., at 212. When Montoya Alvarez and the child returned to the therapist after Lo-zano filed a petition for the child’s return, the therapist noted that the child was doing well but did not wish to see her father. In the meantime, Lozano attempted to find Montoya Alvarez and the child. Shortly after Montoya Alvarez left in November 2008, he called her sister Gloria in London, but eventually received legal advice not to speak with Montoya Alvarez’ family. A mediation service also sent several letters to Montoya Alvarez on Lozano’s behalf without receiving a response. In July 2009, Lozano filed an application for a court order in the United Kingdom “ ‘to ensure that he obtains regular contact with his [child] and plays an active role in [her] life.’ ” Id., at 210. He also sought court orders to compel Montoya Alvarez’ sisters and legal counsel, the child’s doctor and nursery, and various government offices in London to disclose the child’s whereabouts. On March 15, 2010, after determining that the child was not in the United Kingdom (and suspecting that the child was in New York), Lozano filed a form with the Hague Convention Central Authority for England and Wales seeking to have the child returned.[2] The United States Central Authority—the Office of Children’s Issues in the Department of State, see 22 CFR §94.2 (2013)—received the application on March 23, 2010. After the Office of Children’s Issues confirmed that Montoya Alvarez had entered the United States, Lozano located Montoya Alvarez’ address in New York. On November 10, 2010, more than 16 months after Montoya Alvarez and the child left the United Kingdom, Lozano filed a Petition for Return of Child pursuant to the Hague Convention and ICARA, 42 U. S. C. §11603, in the United States District Court for the Southern District of New York. After a 2-day evidentiary hearing, the District Court denied Lozano’s petition. 809 F. Supp. 2d 197. The District Court concluded that Lozano had stated a prima facie case of wrongful removal under the Hague Convention. Id., at 219–220. Prior to her removal, the child was a habitual resident of the United Kingdom, see Hague Convention, Art. 4, and Lozano had custody rights that hewas actually exercising at the time of removal, see Arts. 3(a)–(b). Because the petition was filed more than one year after the child’s wrongful removal, however, the District Court denied the petition on the basis that the child was now settled in New York. Id., at 230, 234. “Viewing the total-ity of the circumstances,” the court found sufficient indicia of “stability in her family, educational, social, and most importantly, home life,” id., at 233, to conclude that the child was settled in her current environment and that repatriation would be “extremely disruptive,” id., at 234. Lozano argued that the child should be returned forthwith because the 1-year period in Article 12 should be equitably tolled during the period that Montoya Alvarez concealed the child. The court rejected that argument, holding that the 1-year period could not be extended by equitable tolling.[3] Id., at 228–229. On appeal, the Second Circuit affirmed. 697 F. 3d 41 (2012). The Court of Appeals agreed that the 1-year per-iod in Article 12 is not subject to equitable tolling. According to the court, unlike a statute of limitations that would prohibit the filing of a return petition after one year, the1-year period in Article 12 merely permits courts, after that period has run, to consider the interests of the child in settlement. Id., at 52. The Second Circuit concluded that allowing equitable tolling to delay consideration of the child’s interests would undermine the purpose of the Hague Convention. Id., at 54. We granted certiorari to decide whether Article 12’s1-year period is subject to equitable tolling. 570 U. S. ___ (2013). Compare 697 F. 3d, at 50–55 (equitable tolling not available); and Yaman v. Yaman, 730 F. 3d 1, 12–16 (CA1 2013) (same), with Duarte v. Bardales, 526 F. 3d 563, 568–570 (CA9 2008) (equitable tolling available); and Furnes v. Reeves, 362 F. 3d 702, 723–724 (CA11 2004) (same). We hold that equitable tolling is not available, and therefore affirm. III Although this case concerns the application of equitable tolling to a treaty, we begin with a more familiar context: equitable tolling of federal statutes of limitations. As a general matter, equitable tolling pauses the running of, or “tolls,” a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action. See, e.g., Pace v. DiGuglielmo, 544 U. S. 408, 418 (2005) . Because the doctrine effectively extends an otherwise discrete limitations period set by Congress, whether equitable tolling is available is fundamentally a question of statutory intent. See, e.g., Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95 (1990) ; Bowen v. City of New York, 476 U. S. 467 –480 (1986); Honda v. Clark, 386 U. S. 484, 501 (1967) . As applied to federal statutes of limitations, the inquiry begins with the understanding that Congress “legislate[s] against a background of common-law adjudicatory principles.” Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991) . Equitable tolling, a long-established feature of American jurisprudence derived from “the old chancery rule,” Holmberg v. Armbrecht, 327 U. S. 392, 397 (1946) , is just such a principle. See Young v. United States, 535 U. S. 43 –50 (2002) (“Congress must be presumed to draft limitations periods in light of this background principle”); Bailey v. Glover, 21 Wall. 342, 349–350 (1875). We therefore presume that equitable tolling applies if the period in question is a statute of limitations and if tolling is consistent with the statute. Young, supra, at 49–50 (“It is hornbook law that limitations periods are ‘customarily subject to “equitable tolling,” ’ unless tolling would be ‘inconsistent with the text of the relevant statute’ ” (citation omitted)). IV The Hague Convention, of course, is a treaty, not a federal statute. For treaties, which are primarily “ ‘compact[s] between independent nations,’ ” Medellín v. Texas, 552 U. S. 491, 505 (2008) , our “duty [i]s to ascertain the intent of the parties” by looking to the document’s text and context, United States v. Choctaw Nation, 179 U. S. 494, 535 (1900) ; see also BG Group plc v. Republic of Argen-tina, post, at 10. We conclude that the parties to the Hague Convention did not intend equitable tolling to apply to the 1-year period in Article 12. Unlike federal statutes of limitations, the Convention was not adopted against a shared background of equitable tolling. Even if the Convention were subject to a presumption that statutes of limitations may be tolled, the 1-year period in Article 12 is not a statute of limitations. And absent a presumption in favor of equitable tolling, nothing in the Convention warrants tolling the 1-year period. A First, there is no general presumption that equitable tolling applies to treaties. Congress is presumed to incorporate equitable tolling into federal statutes of limitations because equitable tolling is part of the established backdrop of American law. Rotella v. Wood, 528 U. S. 549, 560 (2000) (“[F]ederal statutes of limitations are generally subject to equitable principles of tolling”). It does not follow, however, that we can export such background principles of United States law to contexts outside their jurisprudential home. It is particularly inappropriate to deploy this background principle of American law automatically when interpreting a treaty. “A treaty is in its nature a contract between . . . nations, not a legislative act.” Foster v. Neilson, 2 Pet. 253, 314 (1829) (Marshall, C. J., for the Court); see also 2 Debates on the Federal Constitution 506 (J. Elliot 2d ed. 1863) (James Wilson) (“[I]n their nature treaties originate differently from laws. They are made by equal parties, and each side has half of the bargain to make . . . ”). That distinction has been reflected in the way we interpret treaties. It is our “responsibility to read the treaty in a manner ‘consistent with the shared expectations of the contracting parties.’ ” Olympic Airways v. Husain, 540 U. S. 644, 650 (2004) (quoting Air France v. Saks, 470 U. S. 392, 399 (1985) ; emphasis added). Even if a background principle is relevant to the interpretation of federal statutes, it has no proper role in the interpretation of treaties unless that principle is shared by the parties to “an agreement among sovereign powers,” Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996) . Lozano has not identified a background principle of equitable tolling that is shared by the signatories to the Hague Convention. To the contrary, Lozano concedes that in the context of the Convention, “foreign courts have failed to adopt equitable tolling . . . because they lac[k] the presumption that we [have].” Tr. of Oral Arg. 19–20. While no signatory state’s court of last resort has resolved the question, intermediate courts of appeals in several states have rejected equitable tolling. See Cannon v. Cannon, [2004] EWCA (Civ) 1330, [2005] 1 W. L. R. 32, ¶51 (Eng.), (rejecting the “tolling rule” as “too crude an approach” for the Convention); Kubera v. Kubera, 3 B. C. L. R. (5th) 121, ¶64, 317 D. L. R. (4th) 307, ¶64 (2010) (Can.) (equitable tolling “has not been adopted in other jurisdictions, including Canada”); see also HJ v. Secretary for Justice, [2006] NZFLR 1005, ¶53 (CA), appeal dism’d on other grounds, [2007] 2 NZLR 289; A. C. v. P. C., [2005] HKEC 839, 2005 WL 836263, ¶55, (Hong Kong Ct. 1st Instance).[4] The American presumption that federal statutes of limitations can be equitably tolled therefore does not apply to this multilateral treaty. Cf. Eastern Airlines, Inc. v. Floyd, 499 U. S. 530 –545, and n. 10 (1991) (declining to adopt liability for psychic injury under the Warsaw Convention because “the unavailability of compensation for purely psychic injury in many common and civil law countries at the time of the Warsaw Conference persuades us that the signatories had no specific intentto include such a remedy in the Convention” (footnote omitted)). It does not matter to this conclusion that Congress enacted a statute to implement the Hague Convention. See ICARA, 42 U. S. C. §§11601–11610. ICARA does not address the availability of equitable tolling. Nor does it purport to alter the Convention. See §11601(b)(2) (“The provisions of [ICARA] are in addition to and not in lieu of the provisions of the Convention”). In fact, Congress explicitly recognized “the need for uniform international interpretation of the Convention.” §11601(b)(3)(B). Congress’ mere enactment of implementing legislation did not somehow import background principles of American law into the treaty interpretation process, thereby altering our understanding of the treaty itself. B Even if the presumption in favor of equitable tolling had force outside of domestic law, we have only applied that presumption to statutes of limitations. See Hallstrom v. Tillamook County, 493 U. S. 20, 27 (1989) (no equitable tolling of a 60-day presuit notice requirement that does not operate as a statute of limitations). The 1-year period in Article 12 is not a statute of limitations. As a general matter, “[s]tatutes of limitations establish the period of time within which a claimant must bring an action.” Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U. S. ___, ___ (2013) (slip op., at 4). They characteristically embody a “policy of repose, designed to protect defendants.” Burnett v. New York Central R. Co., 380 U. S. 424, 428 (1965) . And they foster the “elimination of stale claims, and certainty about a plaintiff’s opportunity for recovery and a defendant’s potential liabilities.” Rotella, supra, at 555. In Young, 535 U. S. 43 , we evaluated whether those characteristics of statutes of limitations were present in the “three-year lookback period” for tax liabilities in bankruptcy proceedings. The Bankruptcy Code favors tax claims less than three years old in two respects: Such claims cannot be discharged, and they have priority over certain others in bankruptcy proceedings. See 11 U. S. C. §§507(a)(8)(A)(i), 523(a)(1)(A). If the Internal Revenue Service “sleeps on its rights” by failing to prosecute those claims within three years, however, then those mechanisms for enforcing claims against bankrupt taxpayers are eliminated. Young, 535 U. S., at 47. We concluded that the lookback period “serves the same ‘basic policies [furthered by] all limitations provisions,’ ” ibid. (quoting Ro-tella, 528 U. S., at 555), i.e., certainty and repose. We accordingly held that it was a limitations periodpresumptively subject to equitable tolling. 535 U. S.,at 47. Unlike the 3-year lookback period in Young, expiration of the 1-year period in Article 12 does not eliminate the remedy the Convention affords the left-behind parent—namely, the return of the child. Before one year has elapsed, Article 12 provides that the court “shall order the return of the child forthwith.” Treaty Doc., at 9. But even after that period has expired, the court “shall also order the return of the child, unless it is demonstrated that the child is now settled.” Ibid. The continued availability of the return remedy after one year preserves the possibility of relief for the left-behind parent and prevents reposefor the abducting parent.[5] Rather than establishing any certainty about the respective rights of the parties, the expiration of the 1-year period opens the door to consideration of a third party’s interests, i.e., the child’s interest in settlement. Because that is not the sort of interest addressed by a statute of limitations, we decline to treat the 1-year period as a statute of limitations.[6] C Without a presumption of equitable tolling, the Convention does not support extending the 1-year period during concealment. Article 12 explicitly provides that the 1-year period commences on “the date of the wrongful removal or retention,” and makes no provision for an extension of that period. Id., at 9. Further, the practical effect of the tolling that Lozano requests would be to delay the commencement of the 1-year period until the left-behind parent discovers the child’s location. Commencing the 1-year period upon discovery is the obvious alternative to the commencement date the drafters actually adopted because the subject of the Hague Convention, child abduction, is naturally associated with the sort of concealment that might justify equitable tolling under other circumstances. See 697 F. 3d, at 51, n. 8 (“It would have been a simple matter, if the state parties to the Convention wished to take account of the possibility that an abducting parent might make it difficult for the petitioning parent to discover the child’s whereabouts, to run the period ‘from the date that the petitioning parent learned [or, could reasonably have learned] of the child’s whereabouts’ ” (alterations in original)). Given that the drafters did not adopt that alternative, the natural implication is that they did not intend the 1-year period to commence on that later date. Cf. Sebelius v. Auburn Regional Medical Center, 568 U. S. ___, ___ (2013) (slip op., at 10–11). We cannot revisit that choice. Lozano contends that equitable tolling is nevertheless consistent with the purpose of the Hague Convention because it is necessary to deter child abductions. In his view, “absent equitable tolling, concealment ‘probably will’ result in non-return,” which will in turn encourage abduction. Reply Brief 14–15; see also Duarte, 526 F. 3d, at 570. We agree, of course, that the Convention reflects a design to discourage child abduction. But the Convention does not pursue that goal at any cost. The child’s interest in choosing to remain, Art. 13, or in avoiding physical or psychological harm, Art. 13(b), may overcome the return remedy. The same is true of the child’s interest in settlement. See supra, at 2; see also In re M, [2008] 1 A. C. 1288, 1310 (Eng. 2007) (opinion of Baroness Hale of Richmond) (“These children should not be made to suffer for the sake of general deterrence of the evil of child abduction world wide”). We are unwilling to apply equitable tolling principles that would, in practice, rewrite the treaty. See Chan v. Korean Air Lines, Ltd., 490 U. S. 122 –135 (1989) (“ ‘[T]o alter, amend, or add to any treaty by inserting any clause, whether small or great, importantor trivial, would be . . . to make, and not to construe a treaty’ ” (quoting The Amiable Isabella, 6 Wheat. 1, 71 (1821) (Story, J., for the Court))). Nor is it true that an abducting parent who conceals a child’s whereabouts will necessarily profit by running out the clock on the 1-year period. American courts have found as a factual matter that steps taken to promote concealment can also prevent the stable attachments that make a child “settled.” See, e.g., Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1363–1364 (MD Fla. 2002) (children not settled when they “lived in seven different locations” in 18 months); Wigley v. Hares, 82 So. 3d 932, 942 (Fla. App. 2011) (“The mother purposely kept him out of all community activities, sports, and even church to avoid detection by the father”); In re Coffield, 96 Ohio App. 3d 52, 58, 644 N. E. 2d 662, 666 (1994) (child not settled when the abducting parent “was attempting to hide [child’s] identity” by withholding child from school and other organized activities). Other signatories to the Hague Convention have likewise recognized that concealment may be taken into account in the factual determination whether the child is settled. See, e.g., Cannon, [2005] 1 W. L. R., ¶¶52–61. See also Kubera, 3 B. C. L. R. (5th), ¶47, 317 D. L. R. (4th), ¶47; A. C. v. P. C., [2005] HKEC 839, ¶39, 2005 WL 836263, ¶39. Equitable tolling is therefore neither required by the Convention nor the only available means to advance its objectives. D Finally, Lozano contends that the Hague Convention leaves room for United States courts to apply their own “common law doctrine of equitable tolling” to the 1-year period in Article 12 without regard to whether the drafters of the Convention intended equitable tolling to apply. Brief for Petitioner 25. Specifically, Lozano contends that the Convention recognizes additional sources of law that permit signatory states to return abducted children even when return is not available or required pursuant to the Convention. Article 34 of the Convention provides that “for the purpos[e] of obtaining the return of a child,” the Convention “shall not restrict the application of an international instrument in force between the State of origin and the State addressed” or the application of “other law of the State addressed.” Treaty Doc., at 13; see also Art. 18, id., at 11 (“The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time”). In Lozano’s view, equitable tolling principles constitute “other law” that should apply here. That contention mistakes the nature of equitable tolling as this Court has applied it. We do not apply equitable tolling as a matter of some independent authority to reconsider the fairness of legislative judgments balancing the needs for relief and repose. See supra, at 7–8. To the contrary, we may apply equitable tolling to the Hague Convention only if we determine that the treaty drafters so intended. See Choctaw Nation, 179 U. S., at 535. For the foregoing reasons, we conclude that they did not. V The Court of Appeals correctly concluded that the 1-year period in Article 12 of the Hague Convention is not subject to equitable tolling. We therefore affirm that court’s judgment. It is so ordered. Notes 1 Except where otherwise noted, the facts are taken from the District Court’s findings. Like the courts below, we refer to Montoya Alvarez and Lozano’s daughter as “the child” to protect her identity. 2 Article 6 of the Hague Convention requires each Contracting State to “designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.” Treaty Doc., at 8. 3 The District Court held in the alternative that even if equitable tolling could apply, it would not be warranted in this case because Lozano had contact information for Montoya Alvarez’ sister Maria in New York. Lozano’s solicitors did not attempt to contact Maria to determine if Montoya Alvarez and the child were there. 809 F. Supp. 2d, at 229–230. 4 Lozano contends that a single-judge decision by an English family court adopted equitable tolling without referring to it by name. See ,[2000] 2 F. L. R. 51, [2000] 3 F. C. R. 404 (Eng.). It is unclear whether the logic of that decision survived the decision of the Court of Appeals for England and Wales in . 5 In the State Department’s view, the Hague Convention confers equitable discretion on courts to order the return of a child even if the court determines that the child is “settled” within the meaning of Article 12. See Brief for United States as 19–25. If accurate, that interpretation would reinforce that Article 12 is not meant to provide repose to the abducting parent, and it would underscore that the 1-year period is not a statute of limitations. But we do not decide whether, and under what circumstances, a court may exercise discretion to order return notwithstanding the child’s subsequent settlement. In the Court of Appeals, Lozano failed to challenge the District Court’s decision not to exercise its discretion to order the return of the settled child, see n. 3, and that issue is beyond the scope of the question presented before this Court. 6 Lozano argues that the United States delegation referred to the1-year period as a “statute of limitations” at various points during and after the drafting process. Brief for Petitioner 27–28. Because the determination whether the 1-year period is a statute of limitations depends on its functional characteristics, it is not significant that the delegation used that label. In any event, we doubt that the remarks of a single delegation are sufficient under these circumstances to establish the “ ‘shared expectations of the contracting parties.’ ” v. , (quoting v. , ).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus LOZANO v. MONTOYA ALVAREZ certiorari to the united states court of appeals for the second circuit No. 12–820. Argued December 11, 2013—Decided March 5, 2014 When one parent abducts a child and flees to another country, the other parent may file a petition in that country for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention). If the parent files a petition within one year of the child’s removal, a court “shall order the return of the child forthwith.” But when the petition is filed after the 1-year period expires, the court “shall . . . order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” Respondent Montoya Alvarez and petitioner Lozano resided with their daughter in London until November 2008, when Montoya Alvarez left with the child for a women’s shelter. In July 2009, Montoya Alvarez and the child left the United Kingdom and ultimately settled in New York. Lozano did not locate Montoya Alvarez and the child until November 2010, more than 16 months after Montoya Alvarez and the child had left the United Kingdom. At that point, Lozano filed a Petition for Return of Child pursuant to the Hague Convention in the Southern District of New York. Finding that the petition was filed more than one year after removal, the court denied the petition on the basis that the child was now settled in New York. It also held that the 1-year period could not be extended by equitable tolling. The Second Circuit affirmed. Held: Article 12’s 1-year period is not subject to equitable tolling. . (a) The doctrine of equitable tolling, as applied to federal statutes of limitations, extends an otherwise discrete limitations period set by Congress. Thus, whether tolling is available is fundamentally a question of statutory intent. Because Congress “legislate[s] against a background of common-law adjudicatory principles,” Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104, 108, including equitable tolling, see Holmberg v. Armbrecht, 327 U.S. 392, 397, equitable tolling is presumed to apply if the period in question is a statute of limitations and if tolling is consistent with the statute, Young v. United States, 535 U.S. 43, 49–50. . (b) In assessing whether equitable tolling applies to treaties, which are “ ‘compact[s] between independent nations,’ ” Medellín v. Texas, 552 U.S. 491, 505, this Court’s “duty [i]s to ascertain the intent of the parties” by looking to the document’s text and context, United States v. Choctaw Nation, 179 U.S. 494, 535. The parties to the Hague Convention did not intend equitable tolling to apply to Article 12’s 1-year period. . (1) There is no general presumption that equitable tolling applies to treaties. Though part of the established backdrop of American law, equitable tolling has no proper role in the interpretation of treaties unless that principle is shared by the parties to the “agreement among sovereign powers,” Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226. Lozano has identified no such shared principle among the Convention signatories, and the courts of several signatories have explicitly rejected equitable tolling of the Convention. Thus, the American presumption does not apply to this multilateral treaty. The International Child Abduction Remedies Act, 42 U. S. C. §§11601–11610, which Congress enacted to implement the Convention, neither addresses the availability of equitable tolling nor purports to alter the Convention, and therefore does not affect this conclusion. . (2) Even if the Convention were subject to a presumption that statutes of limitations may be tolled, Article 12’s 1-year period is not a statute of limitations. Statutes of limitations embody a “policy of repose, designed to protect defendants,” Burnett v. New York Central R. Co., 380 U.S. 424, 428, and foster the “elimination of stale claims, and certainty about a plaintiff’s opportunity for recovery and a defendant’s potential liabilities,” Rotella v. Wood, 528 U.S. 549, 555. Here, the remedy the Convention affords the left-behind parent—return of the child—continues to be available after one year, thus preserving the possibility of relief for that parent and preventing repose for the abducting parent. The period’s expiration also does not establish certainty about the parties’ respective rights. Instead, it opens the door to consideration of a third party’s interests, i.e., the child’s interest in settlement. Because that is not the sort of interest addressed by a statute of limitations, the 1-year period should not be treated as a statute of limitations. Young, supra, at 47, distinguished. . (3) Without a presumption of equitable tolling, the Convention does not support extending the 1-year period during concealment. Article 12 explicitly provides for the period to commence on “the date of the wrongful removal or retention” and makes no provision for an extension. Because the drafters did not choose to delay the period’s commencement until discovery of the child’s location—the obvious alternative to the date of wrongful removal—the natural implication is that they did not intend to commence the period on that later date. Lozano contends that equitable tolling is nonetheless consistent with the Convention’s goal of deterring child abductions, but the Convention does not pursue that goal at any cost, having recognized that the return remedy may be overcome by, e.g., the child’s interest in settlement. And the abducting parent does not necessarily profit by running out the clock, since both American courts and other Convention signatories have considered concealment as a factor in determining whether a child is settled. Equitable tolling is therefore neither required by the Convention nor the only available means to advance its objectives. . (4) Lozano contends that there is room for United States courts to apply equitable tolling because the Convention recognizes that other sources of law may permit signatory states to return abducted children even when return is not available or required by the Convention. But this contention mistakes the nature of equitable tolling, which may be applied to the Hague Convention only if the treaty drafters so intended. For the foregoing reason, they did not. . 697 F.3d 41, affirmed. Thomas, J., delivered the opinion for a unanimous Court. Alito, J., filed a concurring opinion, in which Breyer and Sotomayor, JJ., joined.

The Hague Convention on the Civil Aspects of International Child Abduction generally requires that a country to return the child immediately if the other parent requests return within one year. However, the Convention does not allow equitable tolling when the abducting parent conceals the child's location from another parent. . (a) The parties to the Hague Convention did not intend to apply to the 1-year period in Article 12 of the Convention. Unlike federal statutes of limitations, which were subject to a presumption that statutes of limitation may be tolled, Article 12 is not a statute of limitations. Rather, it is fundamentally a question of statutory intent. Equitable tolling is neither required by the Convention nor the only available means to advance its objectives. P.. (b) The American presumption that federal statutes can be equitably tolled does not apply to treaties. Even if a presumption in favor of such tolling had force outside of domestic law, it has no proper role in the interpretation of federal statutes unless that principle is shared by the parties to an agreement among sovereign powers. Because that is not the sort of interest addressed by an otherwise discrete limitations period, this Court declines to treat the 1 year period as a statute-of- limitations within the meaning of §11601(a)(4). Pp. 697 F. 3d 41, affirmed. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE FORTAS concurred, concluded that: (c) Even if the Convention were to be subject to a presumption of equitable tolling under the presumption of its drafters, it was not adopted against a shared background of such background principles as fairness and repose. It is particularly inappropriate to deploy such background principle of American law automatically when interpreting a treaty. Nor is there any merit to the contention that the Convention leaves room for the United States to apply its own equitable doctrine in its own courts of appeals. Moreover, the American presumption of federal limitations cannot apply equitably, because Congress, in enacting the Convention, omitted a specific remedy for the psychic injury suffered by many countries, and did not include in the treaty the specific remedy sought by Warsaw Conference and ICARA for psychic injury. The Convention was enacted primarily to implement the common law remedy of psychic injury, and does not address the availability of a remedy for such injury under the Warsaw Conference or ICARA. There is no legislative intent to address the problem of child abductions, and Congress' mere enactment of implementing legislation did not somehow import background principles of United States law into the treaty interpretation process, thereby altering this Court's understanding of the treaty itself. Cf. Young v. United States, 535 U. S. 43. To the contrary, it does not follow that, in practice, we can export such background law principles to contexts outside their jurisprudential home, such as the three-year lookback period for tax liabilities in bankruptcy proceedings. Here, the State Department did not adopt an equitable deference principle that would allow courts to order the return of a child even if the court determines that the child is "settled" within Article 12. In any event, the remarks of a single delegation are not sufficient under these circumstances to establish the shared expectations of the contracting parties, and, therefore, the 1year period is not subject to equitable

2013_12-1168

https://www.oyez.org/cases/2013/12-1168

. A Massachusetts statute makes it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. Mass. Gen. Laws, ch. 266, §§120E½(a), (b) (West 2012). Petitioners are individuals who approach and talk to women outside such facilities, attempting to dissuade them from having abortions. The statute prevents petitioners from doing so near the facilities’ entrances. The question presented is whether the statute violates the First Amendment. I A In 2000, the Massachusetts Legislature enacted the Massachusetts Reproductive Health Care Facilities Act, Mass. Gen. Laws, ch. 266, §120E½ (West 2000). The law was designed to address clashes between abortion opponents and advocates of abortion rights that were occurring outside clinics where abortions were performed. The Act established a defined area with an 18-foot radius around the entrances and driveways of such facilities. §120E½(b). Anyone could enter that area, but once within it, no one (other than certain exempt individuals) could knowingly approach within six feet of another person—unless that person consented—“for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.” Ibid. A separate provision subjected to criminal punishment anyone who “knowingly obstructs, detains, hinders, impedes or blocks another person’s entry to or exit from a reproductive health care facility.” §120E½(e). The statute was modeled on a similar Colorado law that this Court had upheld in Hill v. Colorado, 530 U. S. 703 (2000) . Relying on Hill, the United States Court of Appeals for the First Circuit sustained the Massachusetts statute against a First Amendment challenge. McGuire v. Reilly, 386 F. 3d 45 (2004) (McGuire II), cert. denied, 544 U. S. 974 (2005) ; McGuire v. Reilly, 260 F. 3d 36 (2001) (McGuire I). By 2007, some Massachusetts legislators and law enforcement officials had come to regard the 2000 statute as inadequate. At legislative hearings, multiple witnesses recounted apparent violations of the law. Massachusetts Attorney General Martha Coakley, for example, testified that protestors violated the statute “on a routine basis.” App. 78. To illustrate this claim, she played a video depicting protestors approaching patients and clinic staff within the buffer zones, ostensibly without the latter individuals’ consent. Clinic employees and volunteers also testified that protestors congregated near the doors and in the driveways of the clinics, with the result that prospective patients occasionally retreated from the clinics rather than try to make their way to the clinic entrances or parking lots. Captain William B. Evans of the Boston Police Department, however, testified that his officers had made “no more than five or so arrests” at the Planned Parenthood clinic in Boston and that what few prosecutions had been brought were unsuccessful. Id., at 68–69. Witnesses attributed the dearth of enforcement to the difficulty of policing the six-foot no-approach zones. Captain Evans testified that the 18-foot zones were so crowded with protestors that they resembled “a goalie’s crease,” making it hard to determine whether a protestor had deliberately approached a patient or, if so, whether the patient had consented. Id., at 69–71. For similar reasons, Attorney General Coakley concluded that the six-foot no-approach zones were “unenforceable.” Id., at 79. What the police needed, she said, was a fixed buffer zone around clinics that protestors could not enter. Id., at 74, 76. Captain Evans agreed, explaining that such a zone would “make our job so much easier.” Id., at 68. To address these concerns, the Massachusetts Legislature amended the statute in 2007, replacing the six-foot no-approach zones (within the 18-foot area) with a 35-foot fixed buffer zone from which individuals are categorically excluded. The statute now provides: “No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of a reproductive health care facility or within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway.” Mass. Gen. Laws, ch. 266, §120E½(b) (West 2012). A “reproductive health care facility,” in turn, is defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” §120E½(a). The 35-foot buffer zone applies only “during a facility’s business hours,” and the area must be “clearly marked and posted.” §120E½(c). In practice, facilities typically mark the zones with painted arcs and posted signs on adjacent sidewalks and streets. A first violation of the statute is punishable by a fine of up to $500, up to three months in prison, or both, while a subsequent offense is punishable by a fine of between $500 and $5,000, up to two and a half years in prison, or both. §120E½(d). The Act exempts four classes of individuals: (1) “persons entering or leaving such facility”; (2) “employees or agents of such facility acting within the scope of their employment”; (3) “law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents acting within the scope of their employment”; and (4) “persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purposeof reaching a destination other than such facility.” §120E½(b)(1)–(4). The legislature also retained the separate provision from the 2000 version that proscribes the knowing obstruction of access to a facility. §120E½(e). B Some of the individuals who stand outside Massachusetts abortion clinics are fairly described as protestors, who express their moral or religious opposition to abortion through signs and chants or, in some cases, more aggressive methods such as face-to-face confrontation. Petitioners take a different tack. They attempt to engage women approaching the clinics in what they call “sidewalk counseling,” which involves offering information about alternatives to abortion and help pursuing those options. Petitioner Eleanor McCullen, for instance, will typically initiate a conversation this way: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.” App. 138. If the woman seems receptive, McCullen will provide additional information. McCullen and the other petitioners consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges. Such interactions, petitioners believe, are a much more effective means of dissuading women from having abortions than confrontational methods such as shouting or brandishing signs, which in petitioners’ view tend only to antagonize their intended audience. In unrefuted testimony, petitioners say they have collectively persuaded hundreds of women to forgo abortions. The buffer zones have displaced petitioners from their previous positions outside the clinics. McCullen offers counseling outside a Planned Parenthood clinic in Boston, as do petitioners Jean Zarrella and Eric Cadin. Petitioner Gregory Smith prays the rosary there. The clinic occupies its own building on a street corner. Its main door is recessed into an open foyer, approximately 12 feet back from the public sidewalk. Before the Act was amended to create the buffer zones, petitioners stood near the entryway to the foyer. Now a buffer zone—marked by a painted arc and a sign—surrounds the entrance. This zone extends 23 feet down the sidewalk in one direction, 26 feet in the other, and outward just one foot short of the curb. The clinic’s entrance adds another seven feet to the width of the zone. Id., at 293–295. The upshot is that petitioners are effectively excluded from a 56-foot-wide expanse of the public sidewalk in front of the clinic.[1] Petitioners Mark Bashour and Nancy Clark offer counseling and information outside a Planned Parenthood clinic in Worcester. Unlike the Boston clinic, the Worcester clinic sits well back from the public street and sidewalks. Patients enter the clinic in one of two ways. Those arriving on foot turn off the public sidewalk and walk down a nearly 54-foot-long private walkway to the main entrance. More than 85% of patients, however, arrive by car, turning onto the clinic’s driveway from the street, parking in a private lot, and walking to the main entrance on a private walkway. Bashour and Clark would like to stand where the private walkway or driveway intersects the sidewalk and offer leaflets to patients as they walk or drive by. But a painted arc extends from the private walkway 35 feet down the sidewalk in either direction and outward nearly to the curb on the opposite side of the street. Another arc surrounds the driveway’s entrance, covering more than 93 feet of the sidewalk (including the width of the driveway) and extending across the street and nearly six feet onto the sidewalk on the opposite side. Id., at 295–297. Bashour and Clark must now stand either some distance down the sidewalk from the private walkway and driveway or across the street. Petitioner Cyril Shea stands outside a Planned Parenthood clinic in Springfield, which, like the Worcester clinic, is set back from the public streets. Approximately 90% of patients arrive by car and park in the private lots surrounding the clinic. Shea used to position himself at an entrance to one of the five driveways leading to the parking lots. Painted arcs now surround the entrances, each spanning approximately 100 feet of the sidewalk parallel to the street (again, including the width of the driveways) and extending outward well into the street. Id., at 297–299. Like petitioners at the Worcester clinic, Shea now stands far down the sidewalk from the driveway entrances. Petitioners at all three clinics claim that the buffer zones have considerably hampered their counseling efforts. Although they have managed to conduct some counseling and to distribute some literature outside the buffer zones—particularly at the Boston clinic—they say they have had many fewer conversations and distributed many fewer leaflets since the zones went into effect. Id., at 136–137, 180, 200. The second statutory exemption allows clinic employees and agents acting within the scope of their employment to enter the buffer zones. Relying on this exemption, the Boston clinic uses “escorts” to greet women as they approach the clinic, accompanying them through the zones to the clinic entrance. Petitioners claim that the escorts sometimes thwart petitioners’ attempts to communicate with patients by blocking petitioners from handing literature to patients, telling patients not to “pay any attention” or “listen to” petitioners, and disparaging petitioners as “crazy.” Id., at 165, 178. C In January 2008, petitioners sued Attorney General Coakley and other Commonwealth officials. They sought to enjoin enforcement of the Act, alleging that it violates the First and Fourteenth Amendments, both on its face and as applied to them. The District Court denied petitioners’ facial challenge after a bench trial based on a stipulated record. 573 F. Supp. 2d 382 (Mass. 2008). The Court of Appeals for the First Circuit affirmed. 571 F. 3d 167 (2009). Relying extensively on its previous decisions upholding the 2000 version of the Act, see McGuire II, 386 F. 3d 45; McGuire I, 260 F. 3d 36, the court upheld the 2007 version as a reasonable “time, place, and manner” regulation under the test set forth in Ward v. Rock Against Racism, 491 U. S. 781 (1989) . 571 F. 3d, at 174–181. It also rejected petitioners’ arguments that the Act was substantially overbroad, void for vagueness, and an impermissible prior restraint. Id., at 181–184. The case then returned to the District Court, which held that the First Circuit’s decision foreclosed all but one of petitioners’ as-applied challenges. 759 F. Supp. 2d 133 (2010). After another bench trial, it denied the remain-ing as-applied challenge, finding that the Act left petitioners ample alternative channels of communication. 844 F. Supp. 2d 206 (2012). The Court of Appeals once again affirmed. 708 F. 3d 1 (2013). We granted certiorari. 570 U. S. ___ (2013). II By its very terms, the Massachusetts Act regulates access to “public way[s]” and “sidewalk[s].” Mass. Gen. Laws, ch. 266, §120E½(b) (Supp. 2007). Such areas occupy a “special position in terms of First Amendment protection” because of their historic role as sites for discussion and debate. United States v. Grace, 461 U. S. 171, 180 (1983) . These places—which we have labeled “traditional public fora”—“ ‘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.’ ” Pleasant Grove City v. Summum, 555 U. S. 460, 469 (2009) (quoting Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (1983) ). It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail,” FCC v. League of Women Voters of Cal., 468 U. S. 364, 377 (1984) (internal quotation marks omitted), this aspect of traditional public fora is a virtue, not a vice. In short, traditional public fora are areas that have historically been open to the public for speech activities. Thus, even though the Act says nothing about speech on its face, there is no doubt—and respondents do not dispute—that it restricts access to traditional public fora and is therefore subject to First Amendment scrutiny. See Brief for Respondents 26 (although “[b]y its terms, the Act regulates only conduct,” it “incidentally regulates the place and time of protected speech”). Consistent with the traditionally open character of public streets and sidewalks, we have held that the government’s ability to restrict speech in such locations is “very limited.” Grace, supra, at 177. In particular, the guiding First Amendment principle that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” applies with full force in a traditional public forum. Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972) . As a general rule, in such a forum the government may not “selectively . . . shield the public from some kinds of speech on the ground that they are more offensive than others.” Erznoznik v. Jacksonville, 422 U. S. 205, 209 (1975) . We have, however, afforded the government somewhat wider leeway to regulate features of speech unrelated to its content. “[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ ” Ward, 491 U. S., at 791 (quoting Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984) ).[2] While the parties agree that this test supplies theproper framework for assessing the constitutionality of the Massachusetts Act, they disagree about whether the Act satisfies the test’s three requirements. III Petitioners contend that the Act is not content neutral for two independent reasons: First, they argue that it discriminates against abortion-related speech because it establishes buffer zones only at clinics that perform abortions. Second, petitioners contend that the Act, by exempting clinic employees and agents, favors one viewpoint about abortion over the other. If either of these arguments is correct, then the Act must satisfy strict scrutiny—that is, it must be the least restrictive means of achieving a compelling state interest. See United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000) . Respondents do not argue that the Act can survive this exacting standard. Justice Scalia objects to our decision to consider whether the statute is content based and thus subject to strict scrutiny, given that we ultimately conclude that it is not narrowly tailored. Post, at 2 (opinion concurring in judgment). But we think it unexceptional to perform the first part of a multipart constitutional analysis first. The content-neutrality prong of the Ward test is logically antecedent to the narrow-tailoring prong, because it determines the appropriate level of scrutiny. It is not unusual for the Court to proceed sequentially in applying a constitutional test, even when the preliminary steps turn out not to be dispositive. See, e.g., Bartnicki v. Vopper, 532 U. S. 514 –527 (2001); Holder v. Humanitarian Law Project, 561 U. S. 1 –28 (2010) (concluding that a law was content based even though it ultimately survived strict scrutiny). The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in McCutcheon v. Federal Election Commission, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 10). But the distinction between that case and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon—the standard that was assumed to apply—would have required overruling a precedent. There is no similar reason to forgo the ordinary order of operations in this case. At the same time, there is good reason to address content neutrality. In discussing whether the Act is narrowly tailored, see Part IV, infra, we identify a number of less-restrictive alternative measures that the Massachusetts Legislature might have adopted. Some apply only at abortion clinics, which raises the question whether those provisions are content neutral. See infra, at 12–15. While we need not (and do not) endorse any of those measures, it would be odd to consider them as possible alternatives if they were presumptively unconstitutional because they were content based and thus subject to strict scrutiny. A The Act applies only at a “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” Mass. Gen. Laws, ch. 266, §120E½(a). Given this definition, petitioners argue, “virtually all speech affected by the Act is speech concerning abortion,” thus rendering the Act content based. Brief for Petitioners 23. We disagree. To begin, the Act does not draw content-based distinctions on its face. Contrast Boos v. Barry, 485 U. S. 312, 315 (1988) (ordinance prohibiting the display within 500 feet of a foreign embassy of any sign that tends to bring the foreign government into “ ‘public odium’ ” or “ ‘public disrepute’ ”); Carey v. Brown, 447 U. S. 455, 465 (1980) (statute prohibiting all residential picketing except “peaceful labor picketing”). The Act would be content based if it required “enforcement authorities” to “examine the content of the message that is conveyed to determine whether” a violation has occurred. League of Women Voters of Cal., supra, at 383. But it does not. Whether petitioners violate the Act “depends” not “on what they say,” Humanitarian Law Project, supra, at 27, but simply on where they say it. Indeed, petitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word. It is true, of course, that by limiting the buffer zones to abortion clinics, the Act has the “inevitable effect” of restricting abortion-related speech more than speech on other subjects. Brief for Petitioners 24 (quoting United States v. O’Brien, 391 U. S. 367, 384 (1968) ). But a facially neutral law does not become content based simply be-cause it may disproportionately affect speech on certain topics. On the contrary, “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Ward, supra, at 791. The question in such a case is whether the law is “ ‘justified without reference to the content of the regulated speech.’ ” Renton v. Playtime Theatres, Inc., 475 U. S. 41, 48 (1986) (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976) ; emphasis deleted). The Massachusetts Act is. Its stated purpose is to “increase forthwith public safety at reproductive health care facilities.” 2007 Mass. Acts p. 660. Respondents have articulated similar purposes before this Court—namely, “public safety, patient access to healthcare, and the unobstructed use of public sidewalks and roadways.” Brief for Respondents 27; see, e.g., App. 51 (testimony of Attorney General Coakley); id., at 67–70 (testimony of Captain William B. Evans of the Boston Police); id., at 79–80 (testimony of Mary Beth Heffernan, Undersecretary for Criminal Justice); id., at 122–124 (affidavit of Captain Evans). It is not the case that “[e]very objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.” Post, at 7. We have previously deemed the foregoing concerns to be content neutral. See Boos, 485 U. S., at 321 (identifying “congestion,” “interference with ingress or egress,” and “the need to protect . . . security” as content-neutral concerns). Obstructed access and congested sidewalks are problems no matter what caused them. A group of individuals can obstruct clinic access and clog sidewalks just as much when they loiter as when they protest abortion or counsel patients. To be clear, the Act would not be content neutral if it were concerned with undesirable effects that arise from “the direct impact of speech on its audience” or “[l]isteners’ reactions to speech.” Ibid. If, for example, the speech outside Massachusetts abortion clinics caused offense or made listeners uncomfortable, such offense or discomfort would not give the Commonwealth a content-neutral justification to restrict the speech. All of the problems identified by the Commonwealth here, however, arise irrespective of any listener’s reactions. Whether or not a single person reacts to abortion protestors’ chants or petitioners’ counseling, large crowds outside abortion clinics can still compromise public safety, impede access, and obstruct sidewalks. Petitioners do not really dispute that the Commonwealth’s interests in ensuring safety and preventing obstruction are, as a general matter, content neutral. But petitioners note that these interests “apply outside every building in the State that hosts any activity that might occasion protest or comment,” not just abortion clinics. Brief for Petitioners 24. By choosing to pursue these interests only at abortion clinics, petitioners argue, the Massachusetts Legislature evinced a purpose to “single[ ] out for regulation speech about one particular topic: abortion.” Reply Brief 9. We cannot infer such a purpose from the Act’s limited scope. The broad reach of a statute can help confirm that it was not enacted to burden a narrower category of disfavored speech. See Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 451–452 (1996). At the same time, however, “States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist.” Burson v. Freeman, 504 U. S. 191, 207 (1992) (plurality opinion). The Massachusetts Legislature amended the Act in 2007 in response to a problem that was, in its experience, limited to abortion clinics. There was a record of crowding, obstruction, and even violence outside such clinics. There were apparently no similar recurring problems associated with other kinds of healthcare facilities, let alone with “every building in the State that hosts any activity that might occasion protest or comment.” Brief for Petitioners 24. In light of the limited nature of the problem, it was reasonable for the Massachusetts Legislature to enact a limited solution. When selecting among various options for combating a particular problem, legislatures should be encouraged to choose the one that restricts less speech, not more. Justice Scalia objects that the statute does restrict more speech than necessary, because “only one [Massachusetts abortion clinic] is known to have been beset by the problems that the statute supposedly addresses.” Post, at 7. But there are no grounds for inferring content-based discrimination here simply because the legislature acted with respect to abortion facilities generally rather than proceeding on a facility-by-facility basis. On these facts, the poor fit noted by Justice Scalia goes to the question of narrow tailoring, which we consider below. See infra, at 26–28. B Petitioners also argue that the Act is content based because it exempts four classes of individuals, Mass. Gen. Laws, ch. 266, §§120E½(b)(1)–(4), one of which comprises “employees or agents of [a reproductive healthcare] facil-ity acting within the scope of their employment.” §120E½(b)(2). This exemption, petitioners say, favors one side in the abortion debate and thus constitutes viewpoint discrimination—an “egregious form of content discrimination,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829 (1995) . In particular, petitioners argue that the exemption allows clinic employees and agents—including the volunteers who “escort” patients arriving at the Boston clinic—to speak inside the buffer zones. It is of course true that “an exemption from an otherwise permissible regulation of speech may represent a governmental ‘attempt to give one side of a debatable public question an advantage in expressing its views to the people.’ ” City of Ladue v. Gilleo, 512 U. S. 43, 51 (1994) (quoting First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 –786 (1978)). At least on the record before us, however, the statutory exemption for clinic employees and agents acting within the scope of their employment does not appear to be such an attempt. There is nothing inherently suspect about providing some kind of exemption to allow individuals who work at the clinics to enter or remain within the buffer zones. In particular, the exemption cannot be regarded as simply a carve-out for the clinic escorts; it also covers employees such as the maintenance worker shoveling a snowy sidewalk or the security guard patrolling a clinic entrance, see App. 95 (affidavit of Michael T. Baniukiewicz). Given the need for an exemption for clinic employees, the “scope of their employment” qualification simply ensures that the exemption is limited to its purpose of allowing the employees to do their jobs. It performs the same function as the identical “scope of their employment” restriction on the exemption for “law enforcement, ambulance, fire-fighting, construction, utilities, public works and other municipal agents.” §120E½(b)(3). Contrary to the suggestion of Justice Scalia, post, at 11–12, there is little reason to suppose that the Massachusetts Legislature intended to incorporate a common law doctrine developed for determining vicarious liability in tort when it used the phrase “scope of their employment” for the wholly different purpose of defining the scope of an exemption to a criminal statute. The limitation instead makes clear—with respect to both clinic employees and municipal agents—that exempted individuals are allowed inside the zones only to perform those acts authorized by their employers. There is no suggestion in the record that any of the clinics authorize their employees to speak about abortion in the buffer zones. The “scope of their employment” limitation thus seems designed to protect against exactly the sort of conduct that petitioners and Justice Scalia fear. Petitioners did testify in this litigation about instances in which escorts at the Boston clinic had expressed views about abortion to the women they were accompanying, thwarted petitioners’ attempts to speak and hand literature to the women, and disparaged petitioners in various ways. See App. 165, 168–169, 177–178, 189–190. It is unclear from petitioners’ testimony whether these alleged incidents occurred within the buffer zones. There is no viewpoint discrimination problem if the incidents occurred outside the zones because petitioners are equally free to say whatever they would like in that area. Even assuming the incidents occurred inside the zones, the record does not suggest that they involved speech within the scope of the escorts’ employment. If the speech was beyond the scope of their employment, then each of the alleged incidents would violate the Act’s express terms. Petitioners’ complaint would then be that the police were failing to enforce the Act equally against clinic escorts. Cf. Hoye v. City of Oakland, 653 F. 3d 835, 849–852 (CA9 2011) (finding selective enforcement of a similar ordinance in Oakland, California). While such allegations might state a claim of official viewpoint discrimination, that would not go to the validity of the Act. In any event, petitioners nowhere allege selective enforcement. It would be a very different question if it turned out that a clinic authorized escorts to speak about abortion inside the buffer zones. See post, at 1–2 (Alito, J., concurring in judgment). In that case, the escorts would not seem to be violating the Act because the speech would be within the scope of their employment.[3] The Act’s exemption for clinic employees would then facilitate speech on only one side of the abortion debate—a clear form of viewpoint discrimination that would support an as-applied challenge to the buffer zone at that clinic. But the record before us contains insufficient evidence to show that the exemption operates in this way at any of the clinics, perhaps because the clinics do not want to doom the Act by allowing their employees to speak about abortion within the buffer zones.[4] We thus conclude that the Act is neither content nor viewpoint based and therefore need not be analyzed under strict scrutiny. IV Even though the Act is content neutral, it still must be “narrowly tailored to serve a significant governmental interest.” Ward, 491 U. S., at 796 (internal quotation marks omitted). The tailoring requirement does not sim-ply guard against an impermissible desire to censor. The government may attempt to suppress speech not only because it disagrees with the message being expressed, but also for mere convenience. Where certain speech is associated with particular problems, silencing the speech is sometimes the path of least resistance. But by demanding a close fit between ends and means, the tailoring requirement prevents the government from too readily “sacrific[ing] speech for efficiency.” Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795 (1988) . For a content-neutral time, place, or manner regulation to be narrowly tailored, it must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U. S., at 799. Such a regulation, unlike a content-based restriction of speech, “need not be the least restrictive or least intrusive means of” serving the government’s interests. Id., at 798. But the government still “may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Id., at 799. A As noted, respondents claim that the Act promotes “public safety, patient access to healthcare, and the unobstructed use of public sidewalks and roadways.” Brief for Respondents 27. Petitioners do not dispute the significance of these interests. We have, moreover, previously recognized the legitimacy of the government’s interests in “ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman’s freedom to seek pregnancy-related services.” Schenck v. Pro-Choice Network ofWestern N. Y., 519 U. S. 357, 376 (1997) . See also Madsen v. Women’s Health Center, Inc., 512 U. S. 753 –768 (1994). The buffer zones clearly serve these interests. At the same time, the buffer zones impose serious burdens on petitioners’ speech. At each of the three Planned Parenthood clinics where petitioners attempt to counsel patients, the zones carve out a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics’ entrances and driveways. The zones thereby compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to “sidewalk counseling.” For example, in uncontradicted testimony, McCullen explained that she often cannot distinguish patients from passersby outside the Boston clinic in time to initiate a conversation before they enter the buffer zone. App. 135. And even when she does manage to begin a discussion outside the zone, she must stop abruptly at its painted border, which she believes causes her to appear “untrustworthy” or “suspicious.” Id., at 135, 152. Given these limitations, McCullen is often reduced to raising her voice at patients from outside the zone—a mode of communication sharply at odds with the compassionate message she wishes to convey. Id., at 133, 152–153. Clark gave similar testimony about her experience at the Worcester clinic. Id., at 243–244. These burdens on petitioners’ speech have clearly taken their toll. Although McCullen claims that she has persuaded about 80 women not to terminate their pregnancies since the 2007 amendment, App. to Pet. for Cert. 42a, she also says that she reaches “far fewer people” than she did before the amendment, App. 137. Zarrella reports an even more precipitous decline in her success rate: She estimated having about 100 successful interactions over the years before the 2007 amendment, but not a single one since. Id., at 180. And as for the Worcester clinic, Clark testified that “only one woman out of 100 will make the effort to walk across [the street] to speak with [her].” Id., at 217. The buffer zones have also made it substantially more difficult for petitioners to distribute literature to arriving patients. As explained, because petitioners in Boston cannot readily identify patients before they enter the zone, they often cannot approach them in time to place literature near their hands—the most effective means of getting the patients to accept it. Id., at 179. In Worcester and Springfield, the zones have pushed petitioners so far back from the clinics’ driveways that they can no longer even attempt to offer literature as drivers turn into the parking lots. Id., at 213, 218, 252–253. In short, the Act operates to deprive petitioners of their two primary methods of communicating with patients. The Court of Appeals and respondents are wrong to downplay these burdens on petitioners’ speech. As the Court of Appeals saw it, the Constitution does not accord “special protection” to close conversations or “handbilling.” 571 F. 3d, at 180. But while the First Amendment does not guarantee a speaker the right to any particular form of expression, some forms—such as normal conversation and leafletting on a public sidewalk—have historically been more closely associated with the transmission of ideas than others. In the context of petition campaigns, we have observed that “one-on-one communication” is “the most effective, fundamental, and perhaps economical avenue of political discourse.” Meyer v. Grant, 486 U. S. 414, 424 (1988) . See also Schenck, supra, at 377 (invalidating a “floating” buffer zone around people entering an abortion clinic partly on the ground that it prevented protestors “from communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on the public sidewalks”). And “handing out leaflets in the advocacy of a politically controversial viewpoint . . . is the essence of First Amendment expression”; “[n]o form of speech is entitled to greater constitutional protection.” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 347 (1995) . See also Schenck, supra, at 377 (“Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment”). When the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden.[5] Respondents also emphasize that the Act does not prevent petitioners from engaging in various forms of “protest”—such as chanting slogans and displaying signs—outside the buffer zones. Brief for Respondents 50–54. That misses the point. Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm. While the record indicates that petitioners have been able to have a number of quiet conversations outside the buffer zones, respondents have not refuted petitioners’ testimony that the conversations have been far less frequent and far less successful since the buffer zones were instituted. It is thus no answer to say that petitioners can still be “seen and heard” by women within the buffer zones. Id., at 51–53. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message. Finally, respondents suggest that, at the Worcester and Springfield clinics, petitioners are prevented from communicating with patients not by the buffer zones but by the fact that most patients arrive by car and park in the clinics’ private lots. Id., at 52. It is true that the layout of the two clinics would prevent petitioners from approaching the clinics’ doorways, even without the buffer zones. But petitioners do not claim a right to trespass on the clinics’ property. They instead claim a right to stand on the public sidewalks by the driveway as cars turn into the parking lot. Before the buffer zones, they could do so. Now they must stand a substantial distance away. The Act alone is responsible for that restriction on their ability to convey their message. B 1 The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests. At the outset, we note that the Act is truly exceptional: Respondents and their amici identify no other State with a law that creates fixed buffer zones around abortion clinics.[6] That of course does not mean that the law is invalid. It does, however, raise concern that the Commonwealth has too readily forgone options that could serve its interests just as well, without substantially burdening the kind of speech in which petitioners wish to engage. That is the case here. The Commonwealth’s interests include ensuring public safety outside abortion clinics, preventing harassment and intimidation of patients and clinic staff, and combating deliberate obstruction of clinic entrances. The Act itself contains a separate provision, subsection (e)—unchallenged by petitioners—that prohibits much of this conduct. That provision subjects to criminal punishment “[a]ny person who knowingly obstructs, detains, hinders, impedes or blocks another person’s entry to or exit from a reproductive health care facility.” Mass. Gen. Laws, ch. 266, §120E½(e).[7] If Massachusetts determines that broader prohibitions along the same lines are necessary, it could enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994 (FACE Act), 18 U. S. C. §248(a)(1), which subjects to both criminal and civil penalties anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.” Some dozen other States have done so. See Brief for State of New York et al. as Amici Curiae 13, and n. 6. If the Commonwealth is particularly concerned about harassment, it could also consider an ordinance such as the one adopted in New York City that not only prohibits obstructing access to a clinic, but also makes it a crime “to follow and harass another person within 15 feet of the premises of a reproductive health care facility.” N. Y. C. Admin. Code §8–803(a)(3) (2014).[8] The Commonwealth points to a substantial public safety risk created when protestors obstruct driveways leading to the clinics. See App. 18, 41, 51, 88–89, 99, 118–119. That is, however, an example of its failure to look to less intrusive means of addressing its concerns. Any such obstruction can readily be addressed through existing local ordinances. See, e.g., Worcester, Mass., Revised Ordinances of 2008, ch. 12, §25(b) (“No person shall stand, or place any obstruction of any kind, upon any street, sidewalk or crosswalk in such a manner as to obstruct a free passage for travelers thereon”); Boston, Mass., Municipal Code, ch. 16–41.2(d) (2013) (“No person shall solicit while walking on, standing on or going into any street or highway used for motor vehicle travel, or any area appurtenant thereto (including medians, shoulder areas, bicycle lanes, ramps and exit ramps)”). All of the foregoing measures are, of course, in addition to available generic criminal statutes forbidding assault, breach of the peace, trespass, vandalism, and the like. In addition, subsection (e) of the Act, the FACE Act, and the New York City anti-harassment ordinance are all enforceable not only through criminal prosecutions but also through public and private civil actions for injunctions and other equitable relief. See Mass. Gen. Laws §120E½(f); 18 U. S. C. §248(c)(1); N. Y. C. Admin. Code §§8–804, 8–805. We have previously noted the First Amendment virtues of targeted injunctions as alternatives to broad, prophylactic measures. Such an injunction “regulates the activities, and perhaps the speech, of a group,” but only “because of the group’s past actions in the context of a specific dispute between real parties.” Madsen, 512 U. S., at 762 (emphasis added). Moreover, given the equitable nature of injunctive relief, courts can tailor a remedy to ensure that it restricts no more speech than necessary. See, e.g., id., at 770; Schenck, 519 U. S., at 380–381. In short, injunctive relief focuses on the precise individuals and the precise conduct causing a particular problem. The Act, by contrast, categorically excludes non-exempt individuals from the buffer zones, unnecessarily sweeping in innocent individuals and their speech. The Commonwealth also asserts an interest in preventing congestion in front of abortion clinics. According to respondents, even when individuals do not deliberately obstruct access to clinics, they can inadvertently do so simply by gathering in large numbers. But the Commonwealth could address that problem through more targeted means. Some localities, for example, have ordinances that require crowds blocking a clinic entrance to disperse when ordered to do so by the police, and that forbid the individuals to reassemble within a certain distance of the clinic for a certain period. See Brief for State of New York et al. as Amici Curiae 14–15, and n. 10. We upheld a similar law forbidding three or more people “ ‘to congregate within 500 feet of [a foreign embassy], and refuse to disperse after having been ordered so to do by the police,’ ” Boos, 485 U. S., at 316 (quoting D. C. Code §22–1115 (1938))—an order the police could give only when they “ ‘reasonably believe[d] that a threat to the security or peace of the embassy [was] present,’ ” 485 U. S., at 330 (quoting Finzer v. Barry, 798 F. 2d 1450, 1471 (CADC 1986)). And to the extent the Commonwealth argues that even these types of laws are ineffective, it has another problem. The portions of the record that respondents cite to support the anticongestion interest pertain mainly to one place at one time: the Boston Planned Parenthood clinic on Saturday mornings. App. 69–71, 88–89, 96, 123. Respondents point us to no evidence that individuals regularly gather at other clinics, or at other times in Boston, in sufficiently large groups to obstruct access. For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the Commonwealth is hardly a narrowly tailored solution. The point is not that Massachusetts must enact all or even any of the proposed measures discussed above. The point is instead that the Commonwealth has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate. 2 Respondents have but one reply: “We have tried other approaches, but they do not work.” Respondents emphasize the history in Massachusetts of obstruction at abortion clinics, and the Commonwealth’s allegedly failed attempts to combat such obstruction with injunctions and individual prosecutions. They also point to the Commonwealth’s experience under the 2000 version of the Act, during which the police found it difficult to enforce the six-foot no-approach zones given the “frenetic” activity in front of clinic entrances. Brief for Respondents 43. According to respondents, this history shows that Massachusetts has tried less restrictive alternatives to the buffer zones, to no avail. We cannot accept that contention. Although respondents claim that Massachusetts “tried other laws already on the books,” id., at 41, they identify not a single prosecution brought under those laws within at least the last 17 years. And while they also claim that the Commonwealth “tried injunctions,” ibid., the last injunctions they cite date to the 1990s, see id., at 42 (citing Planned Parenthood League of Mass., Inc. v. Bell, 424 Mass. 573, 677 N. E. 2d 204 (1997); Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 550 N. E. 2d 1361 (1990)). In short, the Commonwealth has not shown that it seriously undertook to address the problem with less intrusive tools readily available to it. Nor has it shown that it considered different methods that other jurisdictions have found effective. Respondents contend that the alternatives we have discussed suffer from two defects: First, given the “widespread” nature of the problem, it is simply not “practicable” to rely on individual prosecutions and injunctions. Brief for Respondents 45. But far from being “widespread,” the problem appears from the record to be limited principally to the Boston clinic on Saturday mornings. Moreover, by their own account, the police appear per-fectly capable of singling out lawbreakers. The legislative testimony preceding the 2007 Act revealed substantial police and video monitoring at the clinics, especially when large gatherings were anticipated. Captain Evans testified that his officers are so familiar with the scene outside the Boston clinic that they “know all the players down there.” App. 69. And Attorney General Coakley relied on video surveillance to show legislators conduct she thought was “clearly against the law.” Id., at 78. If Commonwealth officials can compile an extensive record of obstruction and harassment to support their preferred legislation, we do not see why they cannot do the same to support injunctions and prosecutions against those who might deliberately flout the law. The second supposed defect in the alternatives we have identified is that laws like subsection (e) of the Act and the federal FACE Act require a showing of intentional or deliberate obstruction, intimidation, or harassment, which is often difficult to prove. Brief for Respondents 45–47. As Captain Evans predicted in his legislative testimony, fixed buffer zones would “make our job so much easier.” App. 68. Of course they would. But that is not enough to satisfy the First Amendment. To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency. In any case, we do not think that showing intentional obstruction is nearly so difficult in this context as respondents suggest. To determine whether a protestor intends to block access to a clinic, a police officer need only order him to move. If he refuses, then there is no question that his continued conduct is knowing or intentional. For similar reasons, respondents’ reliance on our decision in Burson v. Freeman is misplaced. There, we upheld a state statute that established 100-foot buffer zones outside polling places on election day within which no one could display or distribute campaign materials or solicit votes. 504 U. S., at 193–194. We approved the buffer zones as a valid prophylactic measure, noting that existing “[i]ntimidation and interference laws fall short of serving a State’s compelling interests because they ‘deal with only the most blatant and specific attempts’ to impede elections.” Id., at 206–207 (quoting Buckley v. Valeo, 424 U. S. 1, 28 (1976) (per curiam)). Such laws were insufficient because “[v]oter intimidation and election fraud are . . . difficult to detect.” Burson, 504 U. S., at 208. Obstruction of abortion clinics and harassment of patients, by contrast, are anything but subtle. We also noted in Burson that under state law, “law enforcement officers generally are barred from the vicinity of the polls to avoid any appearance of coercion in the electoral process,” with the result that “many acts of interference would go undetected.” Id., at 207. Not so here. Again, the police maintain a significant presence outside Massachusetts abortion clinics. The buffer zones in Burson were justified because less restrictive measures were inadequate. Respondents have not shown that to be the case here. Given the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked.[9] * * * Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment. The judgment of the Court of Appeals for the First Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 The zone could have extended an additional 21 feet in width under the Act. Only the smaller area was marked off, however, so only that area has legal effect. See Mass. Gen. Laws, ch. 266, §120E½(c). 2 A different analysis would of course be required if the government property at issue were not a traditional public forum but instead “a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects.” v. , . 3 Less than two weeks after the instant litigation was initiated, the Massachusetts Attorney General’s Office issued a guidance letter clarifying the application of the four exemptions. The letter interpreted the exemptions as not permitting clinic employees or agents, municipal employees or agents, or individuals passing by clinics “to express their views about abortion or to engage in any other partisan speech within the buffer zone.” App. 93, 93–94. While this interpretation supports our conclusion that the employee exemption does not render the Act viewpoint based, we do not consider it in our analysis because it appears to the scope of the Act—a criminal statute—rather than to adopt a “ ‘limiting construction.’ ” v. , (quoting v. , , n. 5 (1982)). 4 Of course we do not hold that “[s]peech restrictions favoring one viewpoint over another are not content based unless it can be shown that the favored viewpoint has actually been expressed.” ,at 13. We instead apply an uncontroversial principle of constitutional adjudication: that a plaintiff generally cannot prevail on an challenge without showing that the law has in fact been (or is sufficiently likely to be) unconstitutionally to him. Specifically, when someone challenges a law as viewpoint discriminatory but it is not clear from the face of the law which speakers will be allowed to speak, he must show that he was prevented from speaking while someone espousing another viewpoint was permitted to do so. can decry this analysis as “astonishing” only by quoting a sentence that is explicitly limited to as-applied challenges and treating it as relevant to facial challenges. 5 As a leading historian has noted: 6 do identify five localities with laws similar to the Act here. Brief for State of New York et al. as 14, n. 7. 7 Massachusetts also has a separate law prohibiting similar kinds of conduct at any “medical facility,” though that law, unlike the Act, requires explicit notice before any penalty may be imposed. Mass. Gen. Laws, ch. 266, §120E. 8 We do not “give [our] approval” to this or any of the other alternatives we discuss. ,at 4. We merely suggest that a law like the New York City ordinance could in principle constitute a permissible alternative. Whether such a law would pass constitutional muster would depend on a number of other factors, such as whether the term “harassment” had been authoritatively construed to avoid vagueness and overbreadth problems of the sort noted by . 9 Because we find that the Act is not narrowly tailored, we need not consider whether the Act leaves open ample alternative channels of communication. Nor need we consider petitioners’ overbreadth challenge.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus McCULLEN et al. v. COAKLEY, ATTORNEY GENERAL OF MASSACHUSETTS, et al. certiorari to the united states court of appeals for the first circuit No. 12–1168. Argued January 15, 2014—Decided June 26, 2014 In 2007, Massachusetts amended its Reproductive Health Care Facilities Act, which had been enacted in 2000 to address clashes between abortion opponents and advocates of abortion rights outside clinics where abortions were performed. The amended version of the Act makes it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” Mass. Gen. Laws, ch. 266, §§120E½(a), (b). The Act exempts from this prohibition four classes of individuals, including “employees or agents of such facility acting within the scope of their employment.” §120E½(b)(2). Another provision of the Act proscribes the knowing obstruction of access to an abortion clinic. §120E½(e). McCullen and the other petitioners are individuals who attempt to engage women approaching Massachusetts abortion clinics in “sidewalk counseling,” which involves offering information about alternatives to abortion and help pursuing those options. They claim that the 35-foot buffer zones have displaced them from their previous positions outside the clinics, considerably hampering their counseling efforts. Their attempts to communicate with patients are further thwarted, they claim, by clinic “escorts,” who accompany arriving patients through the buffer zones to the clinic entrances. Petitioners sued Attorney General Coakley and other Commonwealth officials, seeking to enjoin the Act’s enforcement on the ground that it violates the First and Fourteenth Amendments, both on its face and as applied to them. The District Court denied both challenges, and the First Circuit affirmed. With regard to petitioners’ facial challenge, the First Circuit held that the Act was a reasonable “time, place, and manner” regulation under the test set forth in Ward v. Rock Against Racism, 491 U.S. 781. Held: The Massachusetts Act violates the First Amendment. . (a) By its very terms, the Act restricts access to “public way[s]” and “sidewalk[s],” places that have traditionally been open for speech activities and that the Court has accordingly labeled “traditional public fora,” Pleasant Grove City v. Summum, 555 U.S. 460, 469. The government’s ability to regulate speech in such locations is “very limited.” United States v. Grace, 461 U.S. 171, 177. “[E]ven in a public forum,” however, “the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information,’ ” Ward, supra, at 791. . (b) Because the Act is neither content nor viewpoint based, it need not be analyzed under strict scrutiny. . (1) The Act is not content based simply because it establishes buffer zones only at abortion clinics, as opposed to other kinds of facilities. First, the Act does not draw content-based distinctions on its face. Whether petitioners violate the Act “depends” not “on what they say,” Holder v. Humanitarian Law Project, 561 U.S. 1, 27, but on where they say it. Second, even if a facially neutral law disproportionately affects speech on certain topics, it remains content neutral so long as it is “ ‘justified without reference to the content of the regulated speech.’ ” Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48. The Act’s purposes include protecting public safety, patient access to healthcare, and unobstructed use of public sidewalks and streets. The Court has previously deemed all these concerns to be content neutral. See Boos v. Barry, 485 U.S. 312, 321. An intent to single out for regulation speech about abortion cannot be inferred from the Act’s limited scope. “States adopt laws to address the problems that confront them.” Burson v. Freeman, 504 U.S. 191, 207. There was a record of crowding, obstruction, and even violence outside Massachusetts abortion clinics but not at other kinds of facilities in the Commonwealth. . (2) The Act’s exemption for clinic employees and agents acting within the scope of their employment does not appear to be an attempt to favor one viewpoint about abortion over the other. City of Ladue v. Gilleo, 512 U.S. 43, 51, distinguished. Given that some kind of exemption was necessary to allow individuals who work at the clinics to enter or remain within the buffer zones, the “scope of employment” qualification simply ensures that the exemption is limited to its purpose of allowing the employees to do their jobs. Even assuming that some clinic escorts have expressed their views on abortion inside the zones, the record does not suggest that such speech was within the scope of the escorts’ employment. If it turned out that a particular clinic authorized its employees to speak about abortion in the buffer zones, that would support an as-applied challenge to the zones at that clinic. . (c) Although the Act is content neutral, it is not “narrowly tailored” because it “burden[s] substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U. S., at 799. . (1) The buffer zones serve the Commonwealth’s legitimate interests in maintaining public safety on streets and sidewalks and in preserving access to adjacent reproductive healthcare facilities. See Schenck v. Pro-Choice Network of Western N. Y., 519 U.S. 357, 376. At the same time, however, they impose serious burdens on petitioners’ speech, depriving them of their two primary methods of communicating with arriving patients: close, personal conversations and distribution of literature. Those forms of expression have historically been closely associated with the transmission of ideas. While the Act may allow petitioners to “protest” outside the buffer zones, petitioners are not protestors; they seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives. It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message. . (2) The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests. Subsection (e) of the Act already prohibits deliberate obstruction of clinic entrances. Massachusetts could also enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, 18 U. S. C. §248(a)(1), which imposes criminal and civil sanctions for obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services. Obstruction of clinic driveways can readily be addressed through existing local traffic ordinances. While the Commonwealth contends that individuals can inadvertently obstruct access to clinics simply by gathering in large numbers, that problem could be addressed through a law requiring crowds blocking a clinic entrance to disperse for a limited period when ordered to do so by the police. In any event, crowding appears to be a problem only at the Boston clinic, and even there, only on Saturday mornings. The Commonwealth has not shown that it seriously undertook to address these various problems with the less intrusive tools readily available to it. It identifies not a single prosecution or injunction against individuals outside abortion clinics since the 1990s. The Commonwealth responds that the problems are too widespread for individual prosecutions and injunctions to be effective. But again, the record indicates that the problems are limited principally to the Boston clinic on Saturday mornings, and the police there appear perfectly capable of singling out lawbreakers. The Commonwealth also claims that it would be difficult to prove intentional or deliberate obstruction or intimidation and that the buffer zones accordingly make the police’s job easier. To meet the narrow tailoring requirement, however, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. In any event, to determine whether someone intends to block access to a clinic, a police officer need only order him to move; if he refuses, then there is no question that his continued conduct is knowing or intentional. For similar reasons, the Commonwealth’s reliance on Burson v. Freeman, 504 U.S. 191, is misplaced. There, the Court upheld a law establishing buffer zones outside polling places on the ground that less restrictive measures were inadequate. But whereas “[v]oter intimidation and election fraud” are “difficult to detect,” id., at 208, obstruction and harassment at abortion clinics are anything but subtle. And while the police “generally are barred from the vicinity of the polls to avoid any appearance of coercion in the electoral process,” id., at 207, they maintain a significant presence outside Massachusetts abortion clinics. In short, given the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked. . 708 F.3d 1, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Kennedy and Thomas, JJ., joined. Alito, J., filed an opinion concurring in the judgment.

The Massachusetts Reproductive Health Care Facilities Act (Act) makes it a crime to knowingly stand on a "public way or sidewalk" within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. The Act exempts from criminal prosecution petitioners who attempt to engage women in what they callsidewalk counseling. Petitioners, who stand near the entrances to abortion clinics, have attempted to engage the women in such counseling by initiating a conversation in which they express their moral or religious opposition to abortion through signs and chants or, in some cases, more aggressive methods such as shouting or brandishing signs, and they have collectively persuaded hundreds of women to forgo abortions. Mass. Gen. Laws, ch. 266, §§120E½(a) and (b) (West 2000). The Act also provides that any person who knowingly obstructs, detains, hinders, impedes, or blocks another person's entry to or exit from a reproductive health care facility shall be subject to criminal punishment. The Massachusetts Court of Appeals affirmed, rejecting petitioners' arguments that the Act was substantially overbroad, void for vagueness, and an impermissible prior restraint. The case then returned to the District Court, which held that the First Circuit foreclosed all but one of petitioners as-applied challenges. Held: The Act is neither content nor viewpoint based, and therefore need not be analyzed under strict scrutiny. Pp. 462 U.S. 675-696. (a): The Act operates to deprive petitioners of their two primary methods of communicating with patients. Although the Act does not guarantee a speaker the right to any particular form of expression, some forms of speech have historically been more closely associated with the transmission of ideas than others. Here, Massachusetts has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers, without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. . (b) The Act imposes an especially significant First Amendment burden. Even though the Act says nothing about speech on its face, there is no doubt that it restricts access to traditional public fora and is therefore subject to First Amendment scrutiny. At the same time, the buffer zones impose serious burdens on petitioners. Whether petitioners violate the Act on what they say or simply on where they say it, they must stand a substantial distance away. Moreover, the Act alone is responsible for that restriction on their ability to convey their message. There are no grounds for inferring content-based discrimination here simply because the legislature acted with respect to abortion facilities generally rather than proceeding on a facility-by-facility basis. If either of these arguments is correct, then the Act must satisfy strict scrutiny, i.e., it must be the least restrictive means of achieving a compelling state interest. See, e.g., Schenck v. Pro-Choice Network of Western N. C., Inc., 487 U. S. 781, 774. Cf. Burson v. Freeman,. In any event, petitioners nowhere allege selective enforcement of the Act. And the Act, by exempting clinic employees and agents, does not favor one viewpoint about abortion over the other. To determine whether a protestor intends to block access to a clinic, a police officer need only order him to move, and if he refuses, then there must be no question that his continued conduct is knowing or intentional. This Court has previously deemed the foregoing concerns to be content neutral, and this Court does not reject their content based content based claims. In fact, respondents have articulated similar First Amendment interests in public safety, patient access to healthcare, and the unobstructed use of public sidewalks and roadways. However, the Massachusetts Legislature has not shown that it seriously undertook to address the problem with less intrusive tools readily available to it. By choosing to pursue those interests, the Commonwealth has done so without seriously considering different methods that other jurisdictions have found effective. Thus, it may not do so consistent with the First Amendment consistent with that Amendment. P.. (c) While the Act is content neutral for its content-neutrality prong, it is logically antecedent to the narrowtailoring prong of the Ward test, because it determines the appropriate level of scrutiny. It is not unusual for the Court to proceed sequentially in applying a constitutional test, even when the preliminary steps turn out not to be dispositive. For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the Commonwealth is hardly a narrowly tailored solution. Such a restriction does not further the legitimate First Amendment goals of protecting public safety and public access to public streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. Petitioners are not protestors, who seek not merely to

2013_12-536

https://www.oyez.org/cases/2013/12-536

, in which Justice Scalia, Justice Kennedy, and Justice Alito join. There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options. The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo, 424 U. S. 1 –27 (1976) (per curiam). At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. ___, ___ (2011) (slip op., at 24–25). Many people might find those latter objectives attractive: They would be delighted to see fewer television commercials touting a candidate’s accomplishments or disparaging an opponent’s character. Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition. See Texas v. Johnson, 491 U. S. 397 (1989) ; Snyder v. Phelps, 562 U. S. ___ (2011); National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). Indeed, as we have emphasized, the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971) . In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit political speech. We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access . . . are not corruption.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 360 (2010) . They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns. Any regulation must instead target what we have called “quid pro quo” corruption or its appearance. See id., at 359. That Latin phrase captures the notion of a direct exchange of an official act for money. See McCormick v. United States, 500 U. S. 257, 266 (1991) . “The hallmark of corruption is the financial quid pro quo: dollars for po- litical favors.” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) . Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government “into the debate over who should govern.” Bennett, supra, at ___ (slip op., at 25). And those who govern should be the last people to help decide who should govern. The statute at issue in this case imposes two types of limits on campaign contributions. The first, called base limits, restricts how much money a donor may contribute to a particular candidate or committee. 2 U. S. C. §441a(a)(1). The second, called aggregate limits, restricts how much money a donor may contribute in total to all candidates or committees. §441a(a)(3). This case does not involve any challenge to the base limits, which we have previously upheld as serving the permissible objective of combatting corruption. The Government contends that the aggregate limits also serve that objective, by preventing circumvention of the base limits. We conclude, however, that the aggregate limits do little, if anything, to address that concern, while seriously restricting participation in the democratic process. The aggregate limits are therefore invalid under the First Amendment. I A For the 2013–2014 election cycle, the base limits in the Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), permit an individual to contribute up to $2,600 per election to a candidate ($5,200 total for the primary and general elections); $32,400 per year to a national party committee; [ 1 ] $10,000 per year to a state or local party committee; and $5,000 per year to a political action committee, or “PAC.” 2 U. S. C. §441a(a)(1); 78 Fed. Reg. 8532 (2013). [ 2 ] A national committee, state or local party committee, or multicandidate PAC may in turn contribute up to $5,000 per election to a candidate. §441a(a)(2). [ 3 ] The base limits apply with equal force to contributions that are “in any way earmarked or otherwise directed through an intermediary or conduit” to a candidate. §441a(a)(8). If, for example, a donor gives money to a party committee but directs the party committee to pass the contribution along to a particular candidate, then the transaction is treated as a contribution from the original donor to the specified candidate. For the 2013–2014 election cycle, the aggregate limits in BCRA permit an individual to contribute a total of $48,600 to federal candidates and a total of $74,600 to other political committees. Of that $74,600, only $48,600 may be contributed to state or local party committees and PACs, as opposed to national party committees. §441a(a)(3); 78 Fed. Reg. 8532. All told, an individual may contribute up to $123,200 to candidate and noncandidate committees during each two-year election cycle. The base limits thus restrict how much money a donor may contribute to any particular candidate or committee; the aggregate limits have the effect of restricting how many candidates or committees the donor may support, to the extent permitted by the base limits. B In the 2011–2012 election cycle, appellant Shaun McCutcheon contributed a total of $33,088 to 16 different federal candidates, in compliance with the base limits applicable to each. He alleges that he wished to contribute $1,776 to each of 12 additional candidates but was prevented from doing so by the aggregate limit on contributions to candidates. McCutcheon also contributed a total of $27,328 to several noncandidate political committees, in compliance with the base limits applicable to each. He alleges that he wished to contribute to various other political committees, including $25,000 to each of the three Republican national party committees, but was prevented from doing so by the aggregate limit on contributions to political committees. McCutcheon further alleges that he plans to make similar contributions in the future. In the 2013–2014 election cycle, he again wishes to contribute at least $60,000 to various candidates and $75,000 to non-candidate political committees. Brief for Appellant McCutcheon 11–12. Appellant Republican National Committee is a national political party committee charged with the general management of the Republican Party. The RNC wishes to receive the contributions that McCutcheon and similarly situated individuals would like to make—contributions otherwise permissible under the base limits for national party committees but foreclosed by the aggregate limit on contributions to political committees. In June 2012, McCutcheon and the RNC filed a complaint before a three-judge panel of the U. S. District Court for the District of Columbia. See BCRA §403(a), 116Stat. 113–114. McCutcheon and the RNC asserted that the aggregate limits on contributions to candidates and to noncandidate political committees were unconstitutional under the First Amendment. They moved for a preliminary injunction against enforcement of the challenged provisions, and the Government moved to dismiss the case. The three-judge District Court denied appellants’ motion for a preliminary injunction and granted the Government’s motion to dismiss. Assuming that the base limits appropriately served the Government’s anticorruption interest, the District Court concluded that the aggregate limits survived First Amendment scrutiny because they prevented evasion of the base limits. 893 F. Supp. 2d 133, 140 (2012). In particular, the District Court imagined a hypothetical scenario that might occur in a world without aggregate limits. A single donor might contribute the maximum amount under the base limits to nearly 50 separate committees, each of which might then transfer the money to the same single committee. Ibid. That committee, in turn, might use all the transferred money for coordinated expenditures on behalf of a particular candidate, allowing the single donor to circumvent the base limit on the amount he may contribute to that candidate. Ibid. The District Court acknowledged that “it may seem unlikely that so many separate entities would willingly serve as conduits” for the single donor’s interests, but it concluded that such a scenario “is not hard to imagine.” Ibid. It thus rejected a constitutional challenge to the aggregate limits, characterizing the base limits and the aggregate limits “as a coherent system rather than merely a collection of individual limits stacking prophylaxis upon prophylaxis.” Ibid. McCutcheon and the RNC appealed directly to this Court, as authorized by law. 28 U. S. C. §1253. In such a case, “we ha[ve] no discretion to refuse adjudication of the case on its merits,” Hicks v. Miranda, 422 U. S. 332, 344 (1975) , and accordingly we noted probable jurisdiction. 568 U. S. ___ (2013). II A Buckley v. Valeo, 424 U. S. 1 , presented this Court with its first opportunity to evaluate the constitutionality of the original contribution and expenditure limits set forth in FECA. FECA imposed a $1,000 per election base limit on contributions from an individual to a federal candidate. It also imposed a $25,000 per year aggregate limit on all contributions from an individual to candidates or political committees. 18 U. S. C. §§608(b)(1), 608(b)(3) (1970 ed., Supp. IV). On the expenditures side, FECA imposed limits on both independent expenditures and candidates’ overall campaign expenditures. §§608(e)(1), 608(c). Buckley recognized that “contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities.” 424 U. S., at 14. But it distinguished expenditure limits from contribution limits based on the degree to which each encroaches upon protected First Amendment interests. Expenditure limits, the Court explained, “necessarily reduce[ ] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Id., at 19. The Court thus subjected expenditure limits to “the exacting scrutiny applicable to lim- itations on core First Amendment rights of political expression.” Id., at 44–45. Under exacting scrutiny, the Government may regulate protected speech only if such regulation promotes a compelling interest and is the least restrictive means to further the articulated interest. See Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989) . By contrast, the Court concluded that contribution limits impose a lesser restraint on political speech because they “permit[ ] the symbolic expression of support evidenced by a contribution but do[ ] not in any way infringe the contributor’s freedom to discuss candidates and issues.” Buckley, 424 U. S., at 21. As a result, the Court focused on the effect of the contribution limits on the freedom of political association and applied a lesser but still “rigorous standard of review.” Id., at 29. Under that standard, “[e]ven a ‘ “significant interference” with protected rights of political association’ may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms.” Id., at 25 (quoting Cousins v. Wigoda, 419 U. S. 477, 488 (1975) ). The primary purpose of FECA was to limit quid pro quo corruption and its appearance; that purpose satisfied the requirement of a “sufficiently important” governmental interest. 424 U. S., at 26–27. As for the “closely drawn” component, Buckley concluded that the $1,000 base limit “focuses precisely on the problem of large campaign contributions . . . while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources.” Id., at 28. The Court therefore upheld the $1,000 base limit under the “closely drawn” test. Id., at 29. The Court next separately considered an overbreadth challenge to the base limit. See id., at 29–30. The challengers argued that the base limit was fatally overbroad because most large donors do not seek improper influence over legislators’ actions. Although the Court accepted that premise, it nevertheless rejected the overbreadth challenge for two reasons: First, it was too “difficult to isolate suspect contributions” based on a contributor’s subjective intent. Id., at 30. Second, “Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.” Ibid. Finally, in one paragraph of its 139-page opinion, the Court turned to the $25,000 aggregate limit under FECA. As a preliminary matter, it noted that the constitution- ality of the aggregate limit “ha[d] not been separately addressed at length by the parties.” Id., at 38. Then, in three sentences, the Court disposed of any constitutional objections to the aggregate limit that the challengers might have had: “The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate’s political party. The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.” Ibid. B 1 The parties and amici curiae spend significant energy debating whether the line that Buckley drew between contributions and expenditures should remain the law. Notwithstanding the robust debate, we see no need in this case to revisit Buckley’s distinction between contributions and expenditures and the corollary distinction in the applicable standards of review. Buckley held that the Government’s interest in preventing quid pro quo corruption or its appearance was “sufficiently important,” id., at 26–27; we have elsewhere stated that the same interest may properly be labeled “compelling,” see National Conservative Political Action Comm., 470 U. S., at 496–497, so that the interest would satisfy even strict scrutiny. Moreover, regardless whether we apply strict scrutiny or Buckley’s “closely drawn” test, we must assess the fit between the stated governmental objective and the means selected to achieve that objective. See, e.g., National Conservative Political Action Comm., supra, at 496–501; Randall v. Sorrell, 548 U. S. 230 –262 (2006) (opinion of Breyer, J.). Or to put it another way, if a law that restricts political speech does not “avoid unnecessary abridgement” of First Amendment rights, Buckley, 424 U. S., at 25, it cannot survive “rigorous” review. Because we find a substantial mismatch between the Government’s stated objective and the means selected to achieve it, the aggregate limits fail even under the “closely drawn” test. We therefore need not parse the differences between the two standards in this case. 2 Buckley treated the constitutionality of the $25,000 aggregate limit as contingent upon that limit’s ability to prevent circumvention of the $1,000 base limit, describing the aggregate limit as “no more than a corollary” of the base limit. Id., at 38. The Court determined that circumvention could occur when an individual legally contributes “massive amounts of money to a particular candidate through the use of unearmarked contributions” to entities that are themselves likely to contribute to the candidate. Ibid. For that reason, the Court upheld the $25,000 aggregate limit. Although Buckley provides some guidance, we think that its ultimate conclusion about the constitutionality of the aggregate limit in place under FECA does not control here. Buckley spent a total of three sentences analyzing that limit; in fact, the opinion pointed out that the constitutionality of the aggregate limit “ha[d] not been separately addressed at length by the parties.” Ibid. We are now asked to address appellants’ direct challenge to the aggregate limits in place under BCRA. BCRA is a different statutory regime, and the aggregate limits it imposes operate against a distinct legal backdrop. Most notably, statutory safeguards against circumvention have been considerably strengthened since Buckley was decided, through both statutory additions and the introduction of a comprehensive regulatory scheme. With more targeted anticircumvention measures in place today, the indiscriminate aggregate limits under BCRA appear particularly heavy-handed. The 1976 FECA Amendments, for example, added another layer of base contribution limits. The 1974 version of FECA had already capped contributions from political committees to candidates, but the 1976 version added limits on contributions to political committees. This change was enacted at least “in part to prevent circumvention of the very limitations on contributions that this Court upheld in Buckley.” California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182 –198 (1981) (plurality opinion); see also id., at 203 (Blackmun, J., concurring in part and concurring in judgment). Because a donor’s contributions to a political committee are now limited, a donor cannot flood the committee with “huge” amounts of money so that each contribution the committee makes is perceived as a contribution from him. Buckley, supra, at 38. Rather, the donor may contribute only $5,000 to the committee, which hardly raises the specter of abuse that concerned the Court in Buckley. Limits on contributions to political committees consequently create an additional hurdle for a donor who seeks both to channel a large amount of money to a particular candidate and to ensure that he gets the credit for doing so. The 1976 Amendments also added an antiprolifera- tion rule prohibiting donors from creating or controlling multiple affiliated political committees. See 2 U. S. C. §441a(a)(5); 11 CFR §100.5(g)(4). The Government ac- knowledges that this antiproliferation rule “forecloses what would otherwise be a particularly easy and effective means of circumventing the limits on contributions to any particular political committee.” Brief for Appellee 46. In effect, the rule eliminates a donor’s ability to create and use his own political committees to direct funds in excess of the individual base limits. It thus blocks a straightforward method of achieving the circumvention that was the underlying concern in Buckley. The intricate regulatory scheme that the Federal Election Commission has enacted since Buckley further limits the opportunities for circumvention of the base limits via “unearmarked contributions to political committees likely to contribute” to a particular candidate. 424 U. S., at 38. Although the earmarking provision, 2 U. S. C. §441a(a)(8), was in place when Buckley was decided, the FEC has since added regulations that define earmarking broadly. For example, the regulations construe earmarking to include any designation, “whether direct or indirect, express or implied, oral or written.” 11 CFR §110.6(b)(1). The regulations specify that an individual who has contributed to a particular candidate may not also contribute to a single-candidate committee for that candidate. §110.1(h)(1). Nor may an individual who has contributed to a candidate also contribute to a political committee that has supported or anticipates supporting the same candidate, if the individual knows that “a substantial portion [of his contribution] will be contributed to, or expended on behalf of,” that candidate. §110.1(h)(2). In addition to accounting for statutory and regulatory changes in the campaign finance arena, appellants’ challenge raises distinct legal arguments that Buckley did not consider. For example, presumably because of its cursory treatment of the $25,000 aggregate limit, Buckley did not separately address an overbreadth challenge with respect to that provision. The Court rejected such a challenge to the base limits because of the difficulty of isolating suspect contributions. The propriety of large contributions to in- dividual candidates turned on the subjective intent of donors, and the Court concluded that there was no way to tell which donors sought improper influence over legislators’ actions. See 424 U. S., at 30. The aggregate limit, on the other hand, was upheld as an anticircumvention measure, without considering whether it was possible to discern which donations might be used to circumvent the base limits. See id., at 38. The Court never addressed overbreadth in the specific context of aggregate limits, where such an argument has far more force. Given the foregoing, this case cannot be resolved merely by pointing to three sentences in Buckley that were written without the benefit of full briefing or argument on the issue. See Toucey v. New York Life Ins. Co., 314 U. S. 118 –140 (1941) (departing from “[l]oose language and a sporadic, ill-considered decision” when asked to resolve a question “with our eyes wide open and in the light of full consideration”); Hohn v. United States, 524 U. S. 236, 251 (1998) (departing from a prior decision where it “was rendered without full briefing or argument”). We are confronted with a different statute and different legal arguments, at a different point in the development of campaign finance regulation. Appellants’ sub- stantial First Amendment challenge to the system of aggregate limits currently in place thus merits our plenary consideration. [ 4 ] III The First Amendment “is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, . . . in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” Cohen v. California, 403 U. S. 15, 24 (1971) . As relevant here, the First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association. See Buckley, 424 U. S., at 15. When an individual contributes money to a candidate, he exercises both of those rights: The contribution “serves as a general expression of support for the candidate and his views” and “serves to affiliate a person with a candidate.” Id., at 21–22. Those First Amendment rights are important regardless whether the individual is, on the one hand, a “lone pamphleteer[ ] or street corner orator[ ] in the Tom Paine mold,” or is, on the other, someone who spends “substan-tial amounts of money in order to communicate [his] political ideas through sophisticated” means. National Conservative Political Action Comm., 470 U. S., at 493. Either way, he is participating in an electoral debate that we have recognized is “integral to the operation of the system of government established by our Constitution.” Buckley, supra, at 14. Buckley acknowledged that aggregate limits at least diminish an individual’s right of political association. As the Court explained, the “overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support.” 424 U. S., at 38. But the Court characterized that restriction as a “quite modest restraint upon protected political activity.” Ibid. We cannot agree with that characterization. An aggregate limit on how many candidates and committees an individual may support through contributions is not a “modest restraint” at all. The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse. To put it in the simplest terms, the aggregate limits prohibit an individual from fully contributing to the primary and general election campaigns of ten or more candidates, even if all contributions fall within the base limits Congress views as adequate to protect against corruption. The individual may give up to $5,200 each to nine candidates, but the aggregate limits constitute an outright ban on further contributions to any other candidate (beyond the additional $1,800 that may be spent before reaching the $48,600 aggregate limit). At that point, the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences. A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance—clear First Amendment harms that the dissent never acknowledges. It is no answer to say that the individual can simply contribute less money to more people. To require one person to contribute at lower levels than others because he wants to support more candidates or causes is to impose a special burden on broader participation in the democratic process. And as we have recently admonished, the Government may not penalize an individual for “robustly exercis[ing]” his First Amendment rights. Davis v. Federal Election Comm’n, 554 U. S. 724, 739 (2008) . The First Amendment burden is especially great for individuals who do not have ready access to alternative avenues for supporting their preferred politicians and policies. In the context of base contribution limits, Buckley observed that a supporter could vindicate his associational interests by personally volunteering his time and energy on behalf of a candidate. See 424 U. S., at 22, 28. Such personal volunteering is not a realistic alternative for those who wish to support a wide variety of candidates or causes. Other effective methods of supporting preferred candidates or causes without contributing money are reserved for a select few, such as entertainers capable of raising hundreds of thousands of dollars in a single evening. Cf. Davis, supra, at 742. [ 5 ] The dissent faults this focus on “the individual’s right to engage in political speech,” saying that it fails to take into account “the public’s interest” in “collective speech.” Post, at 6 (opinion of Breyer, J). This “collective” interest is said to promote “a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.” Post, at 7. But there are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good. First, the dissent’s “collective speech” reflected in laws is of course the will of the majority, and plainly can include laws that restrict free speech. The whole point of the First Amendment is to afford individuals protection against such infringements. The First Amendment does not protect the government, even when the government purports to act through legislation reflecting “collective speech.” Cf. United States v. Alvarez, 567 U. S. ___ (2012); Wooley v. Maynard, 430 U. S. 705 (1977) ; West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) . Second, the degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process. The First Amendment does not contemplate such “ad hoc balancing of relative social costs and benefits.” United States v. Stevens, 559 U. S. 460, 470 (2010) ; see also United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000) (“What the Constitution says is that” value judgments “are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority”). Third, our established First Amendment analysis already takes account of any “collective” interest that may justify restrictions on individual speech. Under that accepted analysis, such restrictions are measured against the asserted public interest (usually framed as an important or compelling governmental interest). As explained below, we do not doubt the compelling nature of the “collective” interest in preventing corruption in the electoral process. But we permit Congress to pursue that interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech; we do not truncate this tailoring test at the outset. IV A With the significant First Amendment costs for individual citizens in mind, we turn to the governmental interests asserted in this case. This Court has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption. See Davis, supra, at 741; National Conservative Political Action Comm., 470 U. S., at 496–497. We have consistently rejected attempts to suppress campaign speech based on other legislative objectives. No matter how desirable it may seem, it is not an acceptable governmental objective to “level the playing field,” or to “level electoral opportunities,” or to “equaliz[e] the financial resources of candidates.” Bennett, 564 U. S., at ___ (slip op., at 22–23); Davis, supra, at 741–742; Buckley, supra, at 56. The First Amendment prohibits such legislative attempts to “fine-tun[e]” the electoral process, no matter how well intentioned. Bennett, supra, at ___ (slip op., at 21). As we framed the relevant principle in Buckley, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” 424 U. S., at 48–49. The dissent’s suggestion that Buckley supports the opposite proposition, see post, at 6, simply ignores what Buckley actually said on the matter. See also Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 295 (1981) (“Buckley . . . made clear that contributors cannot be protected from the possibility that others will make larger contributions”). Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption—“quid pro quo” corruption. As Buckley explained, Congress may permissibly seek to rein in “large contributions [that] are given to secure a political quid pro quo from current and potential office holders.” 424 U. S., at 26. In addition to “actual quid pro quo arrangements,” Congress may permissibly limit “the ap- pearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions” to particular candidates. Id., at 27; see also Citizens United, 558 U. S., at 359 (“When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption”). Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. Id., at 359; see McConnell v. Federal Election Comm’n, 540 U. S. 93, 297 (2003) (Kennedy, J., concurring in judgment in part and dissenting in part). And because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access. See Citizens United, 558 U. S., at 360. The dissent advocates a broader conception of corruption, and would apply the label to any individual contributions above limits deemed necessary to protect “collective speech.” Thus, under the dissent’s view, it is perfectly fine to contribute $5,200 to nine candidates but somehow corrupt to give the same amount to a tenth. It is fair to say, as Justice Stevens has, “that we have not always spoken about corruption in a clear or consistent voice.” Id., at 447 (opinion concurring in part and dissenting in part). The definition of corruption that we apply today, however, has firm roots in Buckley itself. The Court in that case upheld base contribution limits because they targeted “the danger of actual quid pro quo arrangements” and “the impact of the appearance of corruption stemming from public awareness” of such a system of unchecked direct contributions. 424 U. S., at 27. Buckley simultaneously rejected limits on spending that was less likely to “be given as a quid pro quo for improper commitments from the candidate.” Id., at 47. In any event, this case is not the first in which the debate over the proper breadth of the Government’s anticorruption interest has been engaged. Compare Citizens United, 558 U. S., at 356–361 (majority opinion), with id., at 447–460 (opinion of Stevens, J.). The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights. In addition, “[i]n drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” Federal Election Comm’n v. Wisconsin Right to Life, 551 U. S. 449, 457 (2007) (opinion of Roberts, C. J.). The dissent laments that our opinion leaves only remnants of FECA and BCRA that are inadequate to combat corruption. See post, at 2. Such rhetoric ignores the fact that we leave the base limits undisturbed. [ 6 ] Those base limits remain the primary means of regulating campaign contributions—the obvious explanation for why the aggregate limits received a scant few sentences of attention in Buckley. [ 7 ] B “When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” United States v. Playboy Entertainment Group, Inc., 529 U. S., at 816. Here, the Government seeks to carry that burden by arguing that the aggregate limits further the permissible objective of preventing quid pro quo corruption. The difficulty is that once the aggregate limits kick in, they ban all contributions of any amount. But Congress’s selection of a $5,200 base limit indicates its belief that contributions of that amount or less do not create a cognizable risk of corruption. If there is no corruption concern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be regarded as corruptible if given $1,801, and all others corruptible if given a dime. And if there is no risk that additional candidates will be corrupted by donations of up to $5,200, then the Government must defend the aggregate limits by demonstrating that they prevent circumvention of the base limits. The problem is that they do not serve that function in any meaningful way. In light of the various statutes and regulations currently in effect, Buckley’s fear that an individual might “contribute massive amounts of money to a particular candidate through the use of unearmarked contributions” to entities likely to support the candi- date, 424 U. S., at 38, is far too speculative. And—importantly—we “have never accepted mere conjecture as adequate to carry a First Amendment burden.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 392 (2000) . As an initial matter, there is not the same risk of quid pro quo corruption or its appearance when money flows through independent actors to a candidate, as when a donor contributes to a candidate directly. When an individual contributes to a candidate, a party committee, or a PAC, the individual must by law cede control over the funds. See 2 U. S. C. §441a(a)(8); 11 CFR §110.6. The Government admits that if the funds are subsequently re-routed to a particular candidate, such action occurs at the initial recipient’s discretion—not the donor’s. See Brief for Appellee 37. As a consequence, the chain of attribution grows longer, and any credit must be shared among the various actors along the way. For those reasons, the risk of quid pro quo corruption is generally applicable only to “the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder.” McConnell, 540 U. S., at 310 (opinion of Kennedy, J.). Buckley nonetheless focused on the possibility that “unearmarked contributions” could eventually find their way to a candidate’s coffers. 424 U. S., at 38. Even ac-cepting the validity of Buckley’s circumvention theory, it is hard to see how a candidate today could receive a “massive amount[ ] of money” that could be traced back to a particular contributor uninhibited by the aggregate limits. Ibid. The Government offers a series of scenarios in support of that possibility. But each is sufficiently implausible that the Government has not carried its burden of demonstrating that the aggregate limits further its anticircumvention interest. The primary example of circumvention, in one form or another, envisions an individual donor who contributes the maximum amount under the base limits to a particular candidate, say, Representative Smith. Then the donor also channels “massive amounts of money” to Smith through a series of contributions to PACs that have stated their intention to support Smith. See, e.g., Brief for Appellee 35–37; Tr. of Oral Arg. 4, 6. Various earmarking and antiproliferation rules disarm this example. Importantly, the donor may not contribute to the most obvious PACs: those that support only Smith. See 11 CFR §110.1(h)(1); see also §102.14(a). Nor may the donor contribute to the slightly less obvious PACs that he knows will route “a substantial portion” of his contribution to Smith. §110.1(h)(2). The donor must instead turn to other PACs that are likely to give to Smith. When he does so, however, he discovers that his contribution will be significantly diluted by all the contributions from others to the same PACs. After all, the donor cannot give more than $5,000 to a PAC and so cannot dominate the PAC’s total receipts, as he could when Buckley was decided. 2 U. S. C. §441a(a)(1)(C). He cannot retain control over his contribution, 11 CFR §110.1(h)(3), direct his money “in any way” to Smith, 2 U. S. C. §441a(a)(8), or even imply that he would like his money to be recontributed to Smith, 11 CFR §110.6(b)(1). His salience as a Smith supporter has been diminished, and with it the potential for corruption. It is not clear how many candidates a PAC must support before our dedicated donor can avoid being tagged with the impermissible knowledge that “a substantial portion” of his contribution will go to Smith. But imagine that the donor is one of ten equal donors to a PAC that gives the highest possible contribution to Smith. [ 8 ] The PAC may give no more than $2,600 per election to Smith. Of that sum, just $260 will be attributable to the donor intent on circumventing the base limits. Thus far he has hardly succeeded in funneling “massive amounts of money” to Smith. Buckley, supra, at 38. But what if this donor does the same thing via, say, 100 different PACs? His $260 contribution will balloon to $26,000, ten times what he may contribute directly to Smith in any given election. This 100-PAC scenario is highly implausible. In the first instance, it is not true that the individual donor will necessarily have access to a sufficient number of PACs to effectuate such a scheme. There are many PACs, but they are not limitless. For the 2012 election cycle, the FEC reported about 2,700 nonconnected PACs (excluding PACs that finance independent expenditures only). And not every PAC that supports Smith will work in this scheme: For our donor’s pro rata share of a PAC’s contribution to Smith to remain meaningful, the PAC must be funded by only a small handful of donors. The antiproliferation rules, which were not in effect when Buckley was decided, prohibit our donor from creating 100 pro-Smith PACs of his own, or collaborating with the nine other donors to do so. See 2 U. S. C. §441a(a)(5) (“all contributions made by political committees established or financed or maintained or controlled by . . . any other person, or by any group of such persons, shall be considered to have been made by a single political committee”). Moreover, if 100 PACs were to contribute to Smith and few other candidates, and if specific individuals like our ardent Smith supporter were to contribute to each, the FEC could weigh those “circumstantial factors” to determine whether to deem the PACs affiliated. 11 CFR §100.5(g)(4)(ii). The FEC’s analysis could take account of a “common or overlapping membership” and “similar patterns of contributions or contributors,” among other considerations. §§100.5(g)(4)(ii)(D), (J). The FEC has in the past initiated enforcement proceedings against contributors with such suspicious patterns of PAC donations. See, e.g., Conciliation Agreement, In re Riley, Matters Under Review 4568, 4633, 4634, 4736 (FEC, Dec. 19, 2001). On a more basic level, it is hard to believe that a rational actor would engage in such machinations. In the example described, a dedicated donor spent $500,000—donating the full $5,000 to 100 different PACs—to add just $26,000 to Smith’s campaign coffers. That same donor, meanwhile, could have spent unlimited funds on independent expenditures on behalf of Smith. See Buckley, 424 U. S., at 44–51. Indeed, he could have spent his entire $500,000 advocating for Smith, without the risk that his selected PACs would choose not to give to Smith, or that he would have to share credit with other contributors to the PACs. We have said in the context of independent expenditures that “ ‘[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent . . . undermines the value of the expenditure to the candidate.’ ” Citizens United, 558 U. S., at 357 (quoting Buckley, supra, at 47). But probably not by 95 percent. And at least from the donor’s point of view, it strikes us as far more likely that he will want to see his full $500,000 spent on behalf of his favored candidate—even if it must be spent independently—rather than see it diluted to a small fraction so that it can be contributed directly by someone else. [ 9 ] Another circumvention example is the one that apparently motivated the District Court. As the District Court crafted the example, a donor gives a $500,000 check to a joint fundraising committee composed of a candidate, a national party committee, and “most of the party’s state party committees” (actually, 47 of the 50). 893 F. Supp. 2d, at 140. The committees divide up the money so that each one receives the maximum contribution permissible under the base limits, but then each transfers its allocated portion to the same single committee. That committee uses the money for coordinated expenditures on behalf of a particular candidate. If that scenario “seem[s] unlikely,” the District Court thought so, too. Ibid. But because the District Court could “imagine” that chain of events, it held that the example substantiated the Government’s circumvention concerns. Ibid. One problem, however, is that the District Court’s speculation relies on illegal earmarking. Lest there be any confusion, a joint fundraising committee is simply a mechanism for individual committees to raise funds collectively, not to circumvent base limits or earmarking rules. See 11 CFR §102.17(c)(5). Under no circumstances may a contribution to a joint fundraising committee result in an allocation that exceeds the contribution limits applicable to its constituent parts; the committee is in fact required to return any excess funds to the contributor. See §102.17(c)(6)(i). The District Court assumed compliance with the specific allocation rules governing joint fundraising committees, but it expressly based its example on the premise that the donor would telegraph his desire to support one candidate and that “many separate entities would willingly serve as conduits for a single contributor’s interests.” 893 F. Supp. 2d, at 140. Regardless whether so many distinct entities would cooperate as a practical matter, the earmarking provision prohibits an individual from directing funds “through an intermediary or conduit” to a particular candidate. 2 U. S. C. §441a(8). Even the “implicit[ ]” agreement imagined by the District Court, 893 F. Supp. 2d, at 140, would trigger the earmarking provision. See 11 CFR §110.6(b)(1). So this circumvention scenario could not succeed without assuming that nearly 50 separate party committees would engage in a transparent violation of the earmarking rules (and that they would not be caught if they did). Moreover, the District Court failed to acknowledge that its $500,000 example cannot apply to most candidates. It crafted the example around a presidential candidate, for whom donations in the thousands of dollars may not seem remarkable—especially in comparison to the nearly $1.4 billion spent by the 2012 presidential candidates. The same example cannot, however, be extrapolated to most House and Senate candidates. Like contributions, coordinated expenditures are limited by statute, with different limits based on the State and the office. See 2 U. S. C. §441a(d)(3). The 2013 coordinated expenditure limit for most House races is $46,600, well below the $500,000 in coordinated expenditures envisioned by the District Court. The limit for Senate races varies significantly based on state population. See 78 Fed. Reg. 8531 (2013). A scheme of the magnitude imagined by the District Court would be possible even in theory for no House candidates and the Senate candidates from just the 12 most populous States. Ibid. Further, to the extent that the law does not foreclose the scenario described by the District Court, experience and common sense do. The Government provides no reason to believe that many state parties would willingly participate in a scheme to funnel money to another State’s candidates. A review of FEC data of Republican and Democratic state party committees for the 2012 election cycle reveals just 12 total instances in which a state party committee contributed to a House or Senate candidate in another State. No surprise there. The Iowa Democratic Party, for example, has little reason to transfer money to the California Democratic Party, especially when the Iowa Democratic Party would be barred for the remainder of the election cycle from receiving another contribution for its own activities from the particular donor. These scenarios, along with others that have been suggested, are either illegal under current campaign finance laws or divorced from reality. The three examples posed by the dissent are no exception. The dissent does not explain how the large sums it postulates can be legally rerouted to a particular candidate, why most state committees would participate in a plan to redirect their donations to a candidate in another State, or how a donor or group of donors can avoid regulations prohibiting con- tributions to a committee “with the knowledge that a substantial portion” of the contribution will support a candidate to whom the donor has already contributed, 11 CFR §110.1(h)(2). The dissent argues that such knowledge may be difficult to prove, pointing to eight FEC cases that did not proceed because of insufficient evidence of a donor’s incriminating knowledge. See post, at 24–25. It might be that such guilty knowledge could not be shown because the donors were not guilty—a possibility that the dissent does not entertain. In any event, the donors described in those eight cases were typically alleged to have exceeded the base limits by $5,000 or less. The FEC’s failure to find the requisite knowledge in those cases hardly means that the agency will be equally powerless to prevent a scheme in which a donor routes millions of dollars in excess of the base limits to a particular candidate, as in the dissent’s “Example Two.” And if an FEC official cannot establish knowledge of circumvention (or establish affiliation) when the same ten donors contribute $10,000 each to 200 newly created PACs, and each PAC writes a $10,000 check to the same ten candidates—the dissent’s “Example Three”—then that official has not a heart but a head of stone. See post, at 19–20, 25. The dissent concludes by citing three briefs for the proposition that, even with the aggregate limits in place, individuals “have transferred large sums of money to specific candidates” in excess of the base limits. Post, at 26. But the cited sources do not provide any real-world examples of circumvention of the base limits along the lines of the various hypotheticals. The dearth of FEC prosecutions, according to the dissent, proves only that people are getting away with it. And the violations that surely must be out there elude detection “because in the real world, the methods of achieving circumvention are more subtle and more complex” than the hypothetical examples. Ibid. This sort of speculation, however, cannot justify the substantial intrusion on First Amendment rights at issue in this case. Buckley upheld aggregate limits only on the ground that they prevented channeling money to candidates beyond the base limits. The absence of such a prospect today belies the Government’s asserted objective of preventing corruption or its appearance. The improbability of circumvention indicates that the aggregate limits instead further the impermissible objective of simply limiting the amount of money in political campaigns. C Quite apart from the foregoing, the aggregate limits violate the First Amendment because they are not “closely drawn to avoid unnecessary abridgment of associational freedoms.” Buckley, 424 U. S., at 25. In the First Amendment context, fit matters. Even when the Court is not applying strict scrutiny, we still require “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the interest served,’ . . . that employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective.” Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989) (quoting In re R. M. J., 455 U. S. 191, 203 (1982) ). Here, because the statute is poorly tailored to the Government’s interest in preventing circumvention of the base limits, it impermissibly restricts participation in the political process. 1 The Government argues that the aggregate limits are justified because they prevent an individual from giving to too many initial recipients who might subsequently recontribute a donation. After all, only recontributed funds can conceivably give rise to circumvention of the base limits. Yet all indications are that many types of recipients have scant interest in regifting donations they receive. Some figures might be useful to put the risk of circumvention in perspective. We recognize that no data can be marshaled to capture perfectly the counterfactual world in which aggregate limits do not exist. But, as we have noted elsewhere, we can nonetheless ask “whether experience under the present law confirms a serious threat of abuse.” Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 457 (2001) . It does not. Experience suggests that the vast majority of contri- butions made in excess of the aggregate limits are likely to be retained and spent by their recipients rather than rerouted to candidates. In the 2012 election cycle, federal candidates, political parties, and PACs spent a total of $7 billion, according to the FEC. In particular, each national political party’s spending ran in the hundreds of millions of dollars. The National Republican Senatorial Committee (NRSC), National Republican Congressional Committee (NRCC), Democratic Senatorial Campaign Committee (DSCC), and Democratic Congressional Campaign Committee (DCCC), however, spent less than $1 million each on direct candidate contributions and less than $10 million each on coordinated expenditures. Brief for NRSC et al. as Amici Curiae 23, 25 (NRSC Brief). Including both coordinated expenditures and direct candidate contributions, the NRSC and DSCC spent just 7% of their total funds on contributions to candidates and the NRCC and DCCC spent just 3%. Likewise, as explained previously, state parties rarely contribute to candidates in other States. In the 2012 election cycle, the Republican and Democratic state party committees in all 50 States (and the District of Columbia) contributed a paltry $17,750 to House and Senate candidates in other States. The state party committees spent over half a billion dollars over the same time period, of which the $17,750 in contributions to other States’ candidates constituted just 0.003%. As with national and state party committees, candidates contribute only a small fraction of their campaign funds to other candidates. Authorized candidate committees may support other candidates up to a $2,000 base limit. 2 U. S. C. §432(e)(3)(B). In the 2012 election, House candidates spent a total of $1.1 billion. Candidate-to-candidate contributions among House candidates totaled $3.65 million, making up just 0.3% of candidates’ overall spending. NRSC Brief 29. The most that any one individual candidate received from all other candidates was around $100,000. Brief for Appellee 39. The fact is that candidates who receive campaign contributions spend most of the money on themselves, rather than passing along donations to other candidates. In this arena at least, charity begins at home. [ 10 ] Based on what we can discern from experience, the indiscriminate ban on all contributions above the aggregate limits is disproportionate to the Government’s interest in preventing circumvention. The Government has not given us any reason to believe that parties or candidates would dramatically shift their priorities if the aggregate limits were lifted. Absent such a showing, we cannot conclude that the sweeping aggregate limits are appropriately tailored to guard against any contributions that might implicate the Government’s anticircumvention interest. A final point: It is worth keeping in mind that the base limits themselves are a prophylactic measure. As we have explained, “restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements.” Citizens United, 558 U. S., at 357. The aggregate limits are then layered on top, ostensibly to prevent circumvention of the base limits. This “prophylaxis-upon-prophylaxis approach” requires that we be particularly diligent in scrutinizing the law’s fit. Wisconsin Right to Life, 551 U. S., at 479 (opinion of Roberts, C. J.); see McConnell, 540 U. S., at 268–269 (opinion of Thomas, J.). 2 Importantly, there are multiple alternatives available to Congress that would serve the Government’s anticircumvention interest, while avoiding “unnecessary abridgment” of First Amendment rights. Buckley, 424 U. S., at 25. The most obvious might involve targeted restrictions on transfers among candidates and political committees. There are currently no such limits on transfers among party committees and from candidates to party committees. See 2 U. S. C. §441a(a)(4); 11 CFR §113.2(c). Perhaps for that reason, a central concern of the District Court, the Government, multiple amici curiae, and the dissent has been the ability of party committees to transfer money freely. If Congress agrees that this is problematic, it might tighten its permissive transfer rules. Doing so would impose a lesser burden on First Amendment rights, as compared to aggregate limits that flatly ban contributions beyond certain levels. And while the Government has not conceded that transfer restrictions would be a perfect substitute for the aggregate limits, it has recognized that they would mitigate the risk of circumvention. See Tr. of Oral Arg. 29. One possible option for restricting transfers would be to require contributions above the current aggregate limits to be deposited into segregated, nontransferable accounts and spent only by their recipients. Such a solution would address the same circumvention possibilities as the current aggregate limits, while not completely barring contributions beyond the aggregate levels. In addition (or as an alternative), if Congress believes that circumvention is especially likely to occur through creation of a joint fundraising committee, it could require that funds received through those committees be spent by their recipients (or perhaps it could simply limit the size of joint fundraising committees). Such alternatives to the aggregate limits properly refocus the inquiry on the delinquent actor: the recipient of a contribution within the base limits, who then routes the money in a manner that undermines those limits. See Citizens United, supra, at 360–361; cf. Bartnicki v. Vopper, 532 U. S. 514 –530 (2001). Indeed, Congress has adopted transfer restrictions, and the Court has upheld them, in the context of state party spending. See 2 U. S. C. §441i(b). So-called “Levin funds” are donations permissible under state law that may be spent on certain federal election activity—namely, voter registration and identification, get-out-the-vote efforts, or generic campaign activities. Levin funds are raised directly by the state or local party committee that ultimately spends them. §441i(b)(2)(B)(iv). That means that other party committees may not transfer Levin funds, solicit Levin funds on behalf of the particular state or local committee, or engage in joint fundraising of Levin funds. See McConnell, 540 U. S., at 171–173. McConnell upheld those transfer restrictions as “justifiable anticircumvention measures,” though it acknowledged that they posed some associational burdens. Id., at 171. Here, a narrow transfer restriction on contributions that could otherwise be recontributed in excess of the base limits could rely on a similar justification. Other alternatives might focus on earmarking. Many of the scenarios that the Government and the dissent hy-pothesize involve at least implicit agreements to circumvent the base limits—agreements that are already prohibited by the earmarking rules. See 11 CFR §110.6. The FEC might strengthen those rules further by, for exam- ple, defining how many candidates a PAC must support in order to ensure that “a substantial portion” of a do- nor’s contribution is not rerouted to a certain candidate. §110.1(h)(2). Congress might also consider a modified version of the aggregate limits, such as one that prohibits donors who have contributed the current maximum sums from further contributing to political committees that have indicated they will support candidates to whom the donor has already contributed. To be sure, the existing earmarking provision does not define “the outer limit of accept- able tailoring.” Colorado Republican Federal Campaign Comm., 533 U. S., at 462. But tighter rules could have a significant effect, especially when adopted in concert with other measures. We do not mean to opine on the validity of any particular proposal. The point is that there are numerous al- ternative approaches available to Congress to prevent circumvention of the base limits. D Finally, disclosure of contributions minimizes the potential for abuse of the campaign finance system. Disclosure requirements are in part “justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” Citizens United, 558 U. S., at 367 (quoting Buckley, supra, at 66). They may also “deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.” Id., at 67. Disclosure requirements burden speech, but—unlike the aggregate limits—they do not impose a ceiling on speech. Citizens United, supra, at 366; but see McConnell, supra, at 275–277 (opinion of Thomas, J.). For that reason, disclosure often represents a less restrictive alternative to flat bans on certain types or quantities of speech. See, e.g., Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 262 (1986) . With modern technology, disclosure now offers a particularly effective means of arming the voting public with information. In 1976, the Court observed that Congress could regard disclosure as “only a partial measure.” Buckley, 424 U. S., at 28. That perception was understandable in a world in which information about campaign contributions was filed at FEC offices and was therefore virtually inaccessible to the average member of the public. See Brief for Cause of Action Institute as Amicus Curiae 15–16. Today, given the Internet, disclosure offers much more robust protections against corruption. See Citizens United, supra, at 370–371. Reports and databases are availa- ble on the FEC’s Web site almost immediately after they are filed, supplemented by private entities such as OpenSecrets.org and FollowTheMoney.org. Because massive quantities of information can be accessed at the click of a mouse, disclosure is effective to a degree not possible at the time Buckley, or even McConnell, was decided. The existing aggregate limits may in fact encourage the movement of money away from entities subject to dis-closure. Because individuals’ direct contributions are limited, would-be donors may turn to other avenues for political speech. See Citizens United, supra, at 364. Individuals can, for example, contribute unlimited amounts to 501(c) organizations, which are not required to publicly disclose their donors. See 26 U. S. C. §6104(d)(3). Such organizations spent some $300 million on independent expenditures in the 2012 election cycle. V At oral argument, the Government shifted its focus from Buckley’s anticircumvention rationale to an argument that the aggregate limits deter corruption regardless of their ability to prevent circumvention of the base limits. See Tr. of Oral Arg. 29–30, 50–52. The Government argued that there is an opportunity for corruption whenever a large check is given to a legislator, even if the check consists of contributions within the base limits to be appropriately divided among numerous candidates and committees. The aggregate limits, the argument goes, ensure that the check amount does not become too large. That new rationale for the aggregate limits—embraced by the dissent, see post, at 15–17—does not wash. It dangerously broadens the circumscribed definition of quid pro quo corruption articu- lated in our prior cases, and targets as corruption the general, broad-based support of a political party. In analyzing the base limits, Buckley made clear that the risk of corruption arises when an individual makes large contributions to the candidate or officeholder himself. See 424 U. S., at 26–27. Buckley’s analysis of the aggregate limit under FECA was similarly confined. The Court noted that the aggregate limit guarded against an individual’s funneling—through circumvention—“massive amounts of money to a particular candidate.” Id., at 38 (emphasis added). We have reiterated that understanding several times. See, e.g., National Conservative Political Action Comm., 470 U. S., at 497 (quid pro quo corruption occurs when “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns” (emphasis added)); Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297 (1981) (Buckley’s holding that contribution limits are permissible “relates to the perception of undue influence of large contributors to a candidate”); McConnell, 540 U. S., at 296 (opinion of Kennedy, J.) (quid pro quo corruption in Buckley involved “contributions that flowed to a particular candidate’s benefit” (emphasis added)). Of course a candidate would be pleased with a donor who contributed not only to the candidate himself, but also to other candidates from the same party, to party committees, and to PACs supporting the party. But there is a clear, administrable line between money beyond the base limits funneled in an identifiable way to a candidate—for which the candidate feels obligated—and money within the base limits given widely to a candidate’s party—for which the candidate, like all other members of the party, feels grateful. When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That gratitude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. See Tashjian v. Republican Party of Conn., 479 U. S. 208 –216 (1986). To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the political process. Cf. California Democratic Party v. Jones, 530 U. S. 567 –573 (2000) (recognizing the Government’s “role to play in structuring and monitoring the election process,” but rejecting “the proposition that party affairs are public affairs, free of First Amendment protections”). The Government suggests that it is the solicitation of large contributions that poses the danger of corruption, see Tr. of Oral Arg. 29–30, 38–39, 50–51; see also post, at 15–16, 20, but the aggregate limits are not limited to any direct solicitation by an officeholder or candidate. Cf. McConnell, supra, at 298–299, 308 (opinion of Kennedy, J.) (rejecting a ban on “soft money” contributions to national parties, but approving a ban on the solicitation of such contributions as “a direct and necessary regulation of federal candidates’ and officeholders’ receipt of quids”). We have no occasion to consider a law that would specifically ban candidates from soliciting donations—within the base limits—that would go to many other candidates, and would add up to a large sum. For our purposes here, it is enough that the aggregate limits at issue are not directed specifically to candidate behavior. * * * For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others. As Edmund Burke explained in his famous speech to the electors of Bristol, a representative owes constituents the exercise of his “mature judgment,” but judgment informed by “the strictest union, the closest correspondence, and the most unreserved communication with his constituents.” The Speeches of the Right Hon. Edmund Burke 129–130 (J. Burke ed. 1867). Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials. The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption—quid pro quo corruption—in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them. For the reasons set forth, we conclude that the aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley. They instead intrude without justification on a citizen’s ability to exercise “the most fundamental First Amendment activities.” Buckley, 424 U. S., at 14. The judgment of the District Court is reversed, and the case is remanded for further proceedings. It is so ordered. Notes 1 There are six authorized national party committees: the Republican National Committee, the Democratic National Committee, the National Republican Senatorial Committee, the Democratic Senatorial Campaign Committee, the National Republican Congressional Committee, and the Democratic Congressional Campaign Committee. See . 2 A PAC is a business, labor, or interest group that raises or spends money in connection with a federal election, in some cases by contributing to candidates. A so-called “Super PAC” is a PAC that makes only independent expenditures and cannot contribute to candidates. The base and aggregate limits govern contributions to traditional PACs, but not to independent expenditure PACs. See SpeechNow.org v. Federal Election Comm’n, 599 F. 3d 686, 695–696 (CADC 2010) (en banc). 3 A multicandidate PAC is a PAC with more than 50 contributors that has been registered for at least six months and has made contributions to five or more candidates for federal office. 11 CFR §100.5(e)(3) (2012). PACs that do not qualify as multicandidate PACs must abide by the base limit applicable to individual contributions. 4 The dissent contends that we should remand for development of an evidentiary record before answering the question with which we were presented. See post, at 28–30 (opinion of Breyer, J). But the parties have treated the question as a purely legal one, and the Government has insisted that the aggregate limits can be upheld under the existing record alone. See Tr. of Oral Arg. 43, 55–56. We take the case as it comes to us. 5 See, e.g., Felsenthal, Obama Attends Fundraiser Hosted by Jay-Z, Beyonce, Reuters, Sept. 18, 2012; Coleman, Kid Rock Supports Paul Ryan at Campaign Fundraiser, Rolling Stone, Aug. 25, 2012; Mason, Robert Duvall to Host Romney Fundraiser, L. A. Times, July 25, 2012; Piazza, Hillary Lands 2.5M with Rocket Man, N. Y. Daily News, Apr. 10, 2008, p. 2. 6 The fact that this opinion does not address the base limits also belies the dissent’s concern that we have silently overruled the Court’s holding in McConnell v. Federal Election Comm’n, . See post, at 12–13. At issue in McConnell was BCRA’s extension of the base limits to so-called “soft money”—previously unregulated contributions to national party committees. See 540 U. S., at 142; see also post, at 31–38 (appendix A to opinion of Breyer, J.) (excerpts from McConnell record discussing unregulated “soft money”). Our holding about the constitutionality of the aggregate limits clearly does not overrule McConnell’s holding about “soft money.” 7 It would be especially odd to regard aggregate limits as essential to enforce base limits when state campaign finance schemes typically include base limits but not aggregate limits. Just eight of the 38 States that have imposed base limits on contributions from individuals to candidates have also imposed aggregate limits (excluding restrictions on a specific subset of donors). See Conn. Gen. Stat. §9–611(c) (2013); Me. Rev. Stat. Ann., Tit. 21–A, §1015(3) (Supp. 2013); Md. Elec. Law Code Ann. §13–226(b) (Lexis Supp. 2013); Mass. Gen. Laws, ch. 55, §7A(a)(5) (West 2012); N. Y. Elec. Law Ann. §14–114(8) (West Supp. 2013); R. I. Gen. Laws §17–25–10.1(a)(1) (Lexis 2013); Wis. Stat. §11.26(4) (2007–2008); Wyo. Stat. Ann. §22–25–102(c)(ii) (2013). The Government presents no evidence concerning the circumvention of base limits from the 30 States with base limits but no aggregate limits. 8 Even those premises are generous because they assume that the donor contributes to non-multicandidate PACs, which are relatively rare. Multicandidate PACs, by contrast, must have more than 50 contributors. 11 CFR §100.5(e)(3). The more contributors, of course, the more the donor’s share in any eventual contribution to Smith is diluted. 9 The Justice Department agrees. As Acting Assistant Attorney General Mythili Raman recently testified before Congress: “We anticipate seeing fewer cases of conduit contributions directly to campaign committees or parties, because individuals or corporations who wish to influence elections or officials will no longer need to attempt to do so through conduit contribution schemes that can be criminally prosecuted. Instead, they are likely to simply make unlimited contributions to Super PACs or 501(c)s.” Hearing on Current Issues in Campaign Finance Law Enforcement before the Subcommittee on Crime and Terrorism of the Senate Committee on the Judiciary, 113th Cong., 1st Sess., 3 (2013). 10 In addition, the percentage of contributions above the aggregate limits that even could be used for circumvention is limited by the fact that many of the modes of potential circumvention can be used only once each election. For example, if one donor gives $2,600 to 100 candidates with safe House seats in the hopes that each candidate will reroute $2,000 to Representative Smith, a candidate in a contested district, no other donor can do the same, because the candidates in the safe seats will have exhausted their permissible contributions to Smith. So there is no risk that the circumvention scheme will repeat itself with multiple other would-be donors to Smith.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus McCUTCHEON et al. v. FEDERAL ELECTION COMMISSION appeal from the united states district court for the district of columbia No. 12–536. Argued October 8, 2013—Decided April 2, 2014 The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo, 424 U.S. 1, 26–27. It may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. ___, ___. The Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), imposes two types of limits on campaign contributions. Base limits restrict how much money a donor may contribute to a particular candidate or committee while aggregate limits restrict how much money a donor may contribute in total to all candidates or committees. 2 U. S. C. §441a. In the 2011–2012 election cycle, appellant McCutcheon contributed to 16 different federal candidates, complying with the base limits applicable to each. He alleges that the aggregate limits prevented him from contributing to 12 additional candidates and to a number of noncandidate political committees. He also alleges that he wishes to make similar contributions in the future, all within the base limits. McCutcheon and appellant Republican National Committee filed a complaint before a three-judge District Court, asserting that the aggregate limits were unconstitutional under the First Amendment. The District Court denied their motion for a preliminary injunction and granted the Government’s motion to dismiss. Assuming that the base limits appropriately served the Government’s anticorruption interest, the District Court concluded that the aggregate limits survived First Amendment scrutiny because they prevented evasion of the base limits. Held: The judgment is reversed, and the case is remanded. 893 F. Supp. 2d 133, reversed and remanded. Chief Justice Roberts, joined by Justice Scalia, Justice Kennedy, and Justice Alito, concluded that the aggregate limits are invalid under the First Amendment. . (a) Appellants’ substantial First Amendment challenge to the current system of aggregate limits merits plenary consideration. . (1) In Buckley, this Court evaluated the constitutionality of the original contribution and expenditure limits in FECA. Buckley distinguished the two types of limits based on the degree to which each encroaches upon protected First Amendment interests. It subjected expenditure limits to “the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.” 424 U. S., at 44–45. But it concluded that contribution limits impose a lesser restraint on political speech and thus applied a lesser but still “rigorous standard of review,” id., at 29, under which such limits “may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms,” id., at 25. Because the Court found that the primary purpose of FECA—preventing quid pro quo corruption and its appearance—was a “sufficiently important” governmental interest, id., at 26–27, it upheld the base limit under the “closely drawn” test, id., at 29. After doing so, the Court devoted only one paragraph of its 139-page opinion to the aggregate limit then in place under FECA, noting that the provision “ha[d] not been separately addressed at length by the parties.” Id., at 38. It concluded that the aggregate limit served to prevent circumvention of the base limit and was “no more than a corollary” of that limit. Id., at 38. . (2) There is no need in this case to revisit Buckley’s distinction between contributions and expenditures and the corresponding distinction in standards of review. Regardless whether strict scrutiny or the “closely drawn” test applies, the analysis turns on the fit between the stated governmental objective and the means selected to achieve that objective. Here, given the substantial mismatch between the Government’s stated objective and the means selected to achieve it, the aggregate limits fail even under the “closely drawn” test. Buckley’s ultimate conclusion about the constitutionality of the aggregate limit in place under FECA does not control here. Buckley spent just three sentences analyzing that limit, which had not been separately addressed by the parties. Appellants here, by contrast, have directly challenged the aggregate limits in place under BCRA, a different statutory regime whose limits operate against a distinct legal backdrop. Most notably, statutory safeguards against circumvention have been considerably strengthened since Buckley. The 1976 FECA Amendments added another layer of base limits—capping contributions from individuals to political committees—and an antiproliferation rule prohibiting donors from creating or controlling multiple affiliated political committees. Since Buckley, the Federal Election Commission has also enacted an intricate regulatory scheme that further limits the opportunities for circumvention of the base limits through “unearmarked contributions to political committees likely to contribute” to a particular candidate. 424 U. S., at 38. In addition to accounting for such statutory and regulatory changes, appellants raise distinct legal arguments not considered in Buckley, including an overbreadth challenge to the aggregate limit. . (b) Significant First Amendment interests are implicated here. Contributing money to a candidate is an exercise of an individual’s right to participate in the electoral process through both political expression and political association. A restriction on how many candidates and committees an individual may support is hardly a “modest restraint” on those rights. The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse. In its simplest terms, the aggregate limits prohibit an individual from fully contributing to the primary and general election campaigns of ten or more candidates, even if all contributions fall within the base limits. And it is no response to say that the individual can simply contribute less than the base limits permit: To require one person to contribute at lower levels because he wants to support more candidates or causes is to penalize that individual for “robustly exercis[ing]” his First Amendment rights. Davis v. Federal Election Comm’n, 554 U.S. 724, 739. In assessing the First Amendment interests at stake, the proper focus is on an individual’s right to engage in political speech, not a collective conception of the public good. The whole point of the First Amendment is to protect individual speech that the majority might prefer to restrict, or that legislators or judges might not view as useful to the democratic process. . (c) The aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance. . (1) This Court has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption. See Davis, supra, at 741. Moreover, the only type of corruption that Congress may target is quid pro quo corruption. Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. Citizens United v. Federal Election Comm’n, 558 U.S. 310, 359. The line between quid pro quo corruption and general influence must be respected in order to safeguard basic First Amendment rights, and the Court must “err on the side of protecting political speech rather than suppressing it.” Federal Election Comm’n v. Wisconsin Right to Life, 551 U.S. 449, 457 (opinion of Roberts, C. J.). . (2) The Government argues that the aggregate limits further the permissible objective of preventing quid pro quo corruption. The difficulty is that once the aggregate limits kick in, they ban all contributions of any amount, even though Congress’s selection of a base limit indicates its belief that contributions beneath that amount do not create a cognizable risk of corruption. The Government must thus defend the aggregate limits by demonstrating that they prevent circumvention of the base limits, a function they do not serve in any meaningful way. Given the statutes and regulations currently in effect, Buckley’s fear that an individual might “contribute massive amounts of money to a particular candidate through . . . unearmarked contributions” to entities likely to support the candidate, 424 U. S., at 38, is far too speculative. Even accepting Buckley’s circumvention theory, it is hard to see how a candidate today could receive “massive amounts of money” that could be traced back to a particular donor uninhibited by the aggregate limits. The Government’s scenarios offered in support of that possibility are either illegal under current campaign finance laws or implausible. . (3) The aggregate limits also violate the First Amendment because they are not “closely drawn to avoid unnecessary abridgment of associational freedoms.” Buckley, supra, at 25. The Government argues that the aggregate limits prevent an individual from giving to too many initial recipients who might then recontribute a donation, but experience suggests that the vast majority of contributions are retained and spent by their recipients. And the Government has provided no reason to believe that candidates or party committees would dramatically shift their priorities if the aggregate limits were lifted. The indiscriminate ban on all contributions above the aggregate limits is thus disproportionate to the Government’s interest in preventing circumvention. Importantly, there are multiple alternatives available to Congress that would serve the Government’s interest in preventing circumvention while avoiding “unnecessary abridgment” of First Amendment rights. Buckley, supra, at 25. Such alternatives might include targeted restrictions on transfers among candidates and political committees, or tighter earmarking rules. Transfers, after all, are the key to the Government’s concern about circumvention, but they can be addressed without such a direct and broad interference with First Amendment rights. . (4) Disclosure of contributions also reduces the potential for abuse of the campaign finance system. Disclosure requirements, which are justified by “a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending,” Citizens United, supra, at 367, may deter corruption “by exposing large contributions and expenditures to the light of publicity,” Buckley, supra at 67. Disclosure requirements may burden speech, but they often represent a less restrictive alternative to flat bans on certain types or quantities of speech. Particularly with modern technology, disclosure now offers more robust protections against corruption than it did when Buckley was decided. . (d) The Government offers an additional rationale for the aggregate limits, arguing that the opportunity for corruption exists whenever a legislator is given a large check, even if the check consists of contributions within the base limits to be divided among numerous candidates or committees. That rationale dangerously broadens the circumscribed definition of quid pro quo corruption articulated in prior cases. Buckley confined its analysis to the possibility that “massive amounts of money” could be funneled to a particular candidate in excess of the base limits. 424 U. S., at 38. Recasting as corruption a donor’s widely distributed support for a political party would dramatically expand government regulation of the political process. And though the Government suggests that solicitation of large contributions poses the corruption danger, the aggregate limits are not limited to any direct solicitation by an officeholder or candidate. . Justice Thomas agreed that the aggregate limits are invalid under the First Amendment, but would overrule Buckley v. Valeo, 424 U.S. 1, and subject BCRA’s aggregate limits to strict scrutiny, which they would surely fail. Buckley’s “analytic foundation . . . was tenuous from the very beginning and has only continued to erode in the intervening years.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 412 (Thomas, J., dissenting). Contributions and expenditures are simply “two sides of the same First Amendment coin,” and this Court’s efforts to distinguish the two have produced mere “word games” rather than any cognizable constitutional law principle. Buckley, supra, at 241, 244 (Burger, C. J., concurring in part and dissenting in part). . Roberts, C. J., announced the judgment of the Court and delivered an opinion, in which Scalia, Kennedy, and Alito, JJ., joined. Thomas, J., filed an opinion concurring in the judgment. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

The Federal Election Act of 1971 (FECA) imposes two types of limits on campaign contributions. The first, called base limits, restricts how much money a donor may contribute to a particular candidate or committee, and the second, called aggregate limits, limits how much of money he may contribute in total to all candidates or committees. The aggregate limits apply with equal force to contributions that are in any way earmarked or otherwise directed through an intermediary or conduit to a candidate. For the 2013-2014 election cycle, the aggregate limits permit an individual to contribute up to $123,200 to candidate and noncandidate committees during each two-year election cycle. Appellant Republican National Committee (RNC), a national political party committee charged with the general management of the Republican Party, filed a complaint with the District Court, alleging that aggregate limits were unconstitutional under the First Amendment. The District Court denied appellants' motion for a preliminary injunction and granted the Government a motion to dismiss. The court concluded that the aggregate limit survived First Amendment scrutiny because they prevented evasion of the base limits. Held: 1. The $25,000 aggregate limit on contributions does not further the only governmental interest this Court accepted as legitimate in Buckley v. Valeo,, but instead intrudes without justification on a citizen's ability to exercise his First Amendment rights. . (a) There is a clear, administrable line between money beyond a base limit funneled in an identifiable way to the candidate, for which the candidate feels obligated, and money within the base limit given widely to the party. When donors furnish widely distributed support within all applicable bases limits, all members of the party or supporters of the cause may benefit, and those who govern should be the last people to help decide who should govern. Cf. California Medical Assn. Comm'n v. Federal Election Comm’n,,. Pp. 456 U.S. 554. (b) The indiscriminate ban on all contributions above the cap limits is disproportionate to the Government's interest in preventing circumvention of the $1,000 base limit. This Court has rejected attempts to suppress campaign speech based on other legislative objectives. Buckley made clear that the risk of corruption arises when an individual makes large contributions to the candidates or officeholder himself. Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may also target only a specific type of corruption. Here, it is not true that the individual donor will necessarily have access to a sufficient number of PACs to effectuate such a scheme, since there are many PACs, but they are not limitless. Moreover, disclosure of contributions minimizes the potential for abuse of the campaign finance system. Cf. Buckley, supra, at 38.. 2. There is no merit to the contention that Buckley did not consider overbreadth in the specific context of aggregate limits. Although Buckley upheld aggregate limits only on the ground that they prevented channeling money to candidates beyond the bases, it does not control this case. There are numerous al- ternative approaches available to Congress to prevent circumvention, and this Court has never accepted mere conjecture as adequate to carry a First Amendment burden. See, e.g., Buckley, 424 U. S. 477, at 28... 3. Under the accepted analysis, restrictions on individual speech are measured against the asserted public interest (usually framed as an important or compelling governmental interest). Buckley treated the constitutionality of the aggregate limitation as contingent upon that limit's ability under the cap limit, describing the limit as no more than a corollary of that limit. See id., at 30. The aggregate limit is also highly implausible, since it cannot be said that individual donors will necessarily be allowed to participate in the unlimited primary and general election campaigns of more than 50 candidates, or that they will be able to choose which of several policy concerns he will advance. And, in light of the various statutes and regulations currently in effect, the risk is far too speculative to justify the substantial intrusion on First Amendment right of individuals to choose who shall govern them. Also implausible is the likelihood that an individual donor would siphon off the funds of other candidates in order to secure a favorable vote, and that he would have to share credit with other contributors to the same candidates. Such an implausible situation is also implausible. Even if the individual could simply contribute less money to more people, he would not be limited to the unlimited base limits for the purpose of preventing quid pro quo corruption, since the vast majority of contri- butions made in excess of the limits are likely to be retained and spent by their recipients, rather than rerouted to candidates.. P. 38. 893 F. Supp. 2d 133, reversed and remanded. WHITE, J., wrote the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and

2013_12-1128

https://www.oyez.org/cases/2013/12-1128

. A patentee ordinarily bears the burden of proving infringement. Agawam Co. v. Jordan, 7 Wall. 583, 609 (1869). This case asks us to decide whether the burden of proof shifts when the patentee is a defendant in a declaratory judgment action, and the plaintiff (the potential infringer) seeks a judgment that he does not infringe the patent. We hold that, when a licensee seeks a declaratory judgment against a patentee to establish that there is no infringement, the burden of proving infringement remains with the patentee. We reverse the Federal Circuit’s determination to the contrary. I A We set forth a simplified version of the facts. The parties are Medtronic, Inc., a firm that (among other things) designs, makes, and sells medical devices, and Mirowski Family Ventures, LLC, a firm that owns patents relating to implantable heart stimulators. In 1991 Medtronic and Mirowski entered into an agreement permitting Medtronic to practice certain Mirowski patents in exchange for royalty payments. In less simplified form: Mirowski entered into a license agreement with Eli Lilly & Co., which then sublicensed the Mirowski patents to Medtronic. Guidant Corp. is Eli Lilly’s successor in interest. For present purposes we shall ignore Eli Lilly, Guidant, and other parties on Mirowski’s side, using “Mirowski” to refer to any and all of them. The 1991 agreement also provided that, if Mirowski gave notice to Medtronic that a new Medtronic product “infringe[d]” a Mirowski patent, Medtronic had a choice. App. 13. Medtronic could simply “cure the nonpayment of royalties.” Ibid. Or it could pay royalties and, at the same time, “challenge” the “assertion of infringement of any of the Mirowski patents through a Declaratory Judgment action.” Ibid. Medtronic, of course, might just ignore the agreement and decide not to pay royalties at all, in which case Mirowski would have “the right to terminate the [l]icense,” ibid., and, if it wished, bring an infringement action. In 2006 the parties entered into a further agreement that slightly modified the procedure for resolving disputes. If Medtronic, having received “timely written notice of infringement,” chose to pursue a declaratory judgment action “challenging infringement,” it could “accumulate disputed royalties” in an escrow account. Id., at 24, 27. The prevailing party in the declaratory judgment action would receive the royalties. Id., at 28. In 2007 the parties found themselves in the midst of an “infringement” dispute. Mirowski gave Medtronic notice that it believed seven new Medtronic products violated various claims contained in two of its patents (related to devices that cause the heart’s ventricles to contract simultaneously as the heart beats). Medtronic thought that its products did not infringe Mirowski’s patents, either because the products fell outside the scope of the patent claims or because the patents were invalid. B In 2007 Medtronic brought this declaratory judgment action in Federal District Court in Delaware. It sought a declaration that its products did not infringe Mirowski’s patents and that the patents were invalid. But, as its agreement with Mirowski provided, Medtronic paid all the relevant royalties into an escrow account. The District Court recognized that Mirowski was the defendant in the action. But it nonetheless believed that Mirowski, “[a]s the part[y] asserting infringement,” bore the burden of proving infringement. Medtronic, Inc. v. Boston Scientific Corp., 777 F. Supp. 2d 750, 766 (Del. 2011); see Under Sea Industries, Inc. v. Dacor Corp., 833 F. 2d 1551, 1557 (CA Fed. 1987) (“The burden always is on the patentee to show infringement”). After a bench trial, the court found that Mirowski had not proved infringement, either directly or under the doctrine of equivalents. And since Mirowski, the patentee, bore the burden of proof, it lost. 777 F. Supp. 2d, at 767–770. The Court of Appeals for the Federal Circuit considered the burden of proof question, and it came to the opposite conclusion. It held that Medtronic, the declaratory judgment plaintiff, bore the burden. It acknowledged that normally the patentee, not the accused infringer, bears the burden of proving infringement, and that the burden normally will not “shift” even when the patentee is “a counterclaiming defendant in a declaratory judgment action.” 695 F. 3d 1266, 1272 (2012). Nonetheless, the Court of Appeals believed that a different rule applies where that patentee is a declaratory judgment defendant and, like Mirowski, that patentee/defendant is “foreclosed” from asserting an “infringement counterclaim” by the “continued existence of a license.” Id., at 1274. In that case, the Court of Appeals held, the party “seeking a declaratory judgment of noninfringement,” namely Medtronic, “bears the burden of persuasion.” Ibid. Medtronic sought certiorari, asking us to review the Federal Circuit’s burden of proof rule. In light of the importance of burdens of proof in patent litigation, we granted the petition. II We begin with a jurisdictional matter. An amicus claims that we must vacate the Federal Circuit’s decision because that court lacked subject-matter jurisdiction. Amicus agrees with the parties that 28 U. S. C. §1338(a) gives federal district courts exclusive jurisdiction over “any civil action arising under any Act of Congress relating to patents” (emphasis added). Moreover, the version of §1295(a)(1) governing this appeal gives the Federal Circuit exclusive appellate jurisdiction over any case where jurisdiction in the district court “was based, in whole or in part, on section 1338.” But, amicus says, in determining whether this case is a “civil action arising under” an “Act of Congress relating to patents,” we must look to the nature of the action that the declaratory judgment defendant, namely the patentee, Mirowski, could have brought in the absence of a declaratory judgment. And that action, amicus adds (in its most significant argument against jurisdiction), would not be a patent infringement action but, rather, an action for damages for breach of contract, namely an action for breach of the Mirowski-Medtronic licensing contract, in which patent infringement is the central issue. See Brief for Tessera Technologies, Inc., as Amicus Curiae 2–3. We agree with amicus that the Declaratory Judgment Act does not “extend” the “jurisdiction” of the federal courts. Skelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667, 671 (1950) . We also agree that federal courts, when determining declaratory judgment jurisdiction, often look to the “character of the threatened action.” Public Serv. Comm’n of Utah v. Wycoff Co., 344 U. S. 237, 248 (1952) . That is to say, they ask whether “a coercive action” brought by “the declaratory judgment defendant” (here Mirowski) “would necessarily present a federal question.” Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 19 (1983) . But we do not agree with amicus’ characterization of the “threatened” or “coercive” action that Mirowski might have brought. The patent licensing agreement specifies that, if Medtronic stops paying royalties, Mirowski can terminate the contract and bring an ordinary patent infringement action. Such an action would arise under federal patent law because “federal patent law creates the cause of action.” Christianson v. Colt Industries Operating Corp., 486 U. S. 800, 809 (1988) . Amicus says that an infringement suit would be un-likely. But that is not the relevant question. The relevant question concerns the nature of the threatened action in the absence of the declaratory judgment suit. Medtronic believes—and seeks to establish in this declaratory judgment suit—that it does not owe royalties because its products are noninfringing. If Medtronic were to act on that belief (by not paying royalties and not bringing a declaratory judgment action), Mirowski could terminate the license and bring an ordinary federal patent law action for infringement. See Brief for Respondent 48 (acknowledging that if Medtronic had “chosen not to pay the royalties . . . it would have subjected itself to a suit for infringement”). Consequently this declaratory judgment action, which avoids that threatened action, also “arises under” federal patent law. See Franchise Tax Bd., supra, at 19; Wycoff Co., supra, at 248. See also MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 128 (2007) (concluding that Article III’s case-or-controversy requirement was satis-fied where a patent licensee faced the threat of suit if it ceased making payments under a license agreement, notwithstanding that the licensee’s continued royalty payments rendered the prospect of such a suit “remote, if not nonexistent”). For this reason we believe that the hypothetical threatened action is properly characterized as an action “arising under an Act of Congress relating to patents.” 28 U. S. C. §1338(a). III We now turn to the question presented. A patent li-censee paying royalties into an escrow account under a pat-ent licensing agreement seeks a declaratory judgment that some of its products are not covered by or do not infringe the patent, and that it therefore does not owe royalties for those products. In that suit, who bears the burden of proof, or, to be more precise, the burden of persuasion? Must the patentee prove infringement or must the licensee prove noninfringement? In our view, the burden of persuasion is with the patentee, just as it would be had the patentee brought an infringement suit. A Simple legal logic, resting upon settled case law, strongly supports our conclusion. It is well established that the burden of proving infringement generally rests upon the patentee. See, e.g., Imhaeuser v. Buerk, 101 U. S. 647, 662 (1880) (“[T]he burden to prove infringement never shifts [to the alleged infringer] if the charge is denied in the plea or answer”); Agawam Co., 7 Wall., at 609 (“Infringement is an affirmative allegation made by the complainant, and the burden of proving it is upon him . . .”). See also Under Sea Industries, 833 F. 2d, at 1557 (“The burden always is on the patentee to show infringement”); 5B Chisum §18.06[1][a], at 18–1180 (2007) (“[T]he burden of proof on factual issues relating to infringement rests upon the patent owner”). We have long considered “the operation of the Declaratory Judgment Act” to be only “procedural,” Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240 (1937) , leaving “substantive rights unchanged,” Beacon Theatres, Inc. v. Westover, 359 U. S. 500, 509 (1959) . See also Vaden v. Discover Bank, 556 U. S. 49 , n. 19 (2009); Skelly Oil Co., 339 U. S., at 674 (noting the “limited procedural purpose of the Declaratory Judgment Act”). And we have held that “the burden of proof ” is a “ ‘substantive’ aspect of a claim.” Raleigh v. Illinois Dept. of Revenue, 530 U. S. 15 –21 (2000); Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U. S. 267, 271 (1994) (“[T]he assignment of the burden of proof is a rule of substantive law . . .”); Garrett v. Moore-McCormack Co., 317 U. S. 239, 249 (1942) (“[T]he burden of proof . . . [is] part of the very substance of [the plaintiff ’s] claim and cannot be considered a mere incident of a form of procedure”). Taken together these three legal propositions indicate that, in a licensee’s declaratory judgment action, the burden of proving infringement should remain with the patentee. Several practical considerations lead to the same conclusion. To shift the burden depending upon the form of the action could create postlitigation uncertainty about the scope of the patent. Suppose the evidence is inconclusive, and an alleged infringer loses his declaratory judgment action because he failed to prove noninfringement. The alleged infringer, or others, might continue to engage in the same allegedly infringing behavior, leaving it to the patentee to bring an infringement action. If the burden shifts, the patentee might lose that action because, the evidence being inconclusive, he failed to prove infringement. So, both sides might lose as to infringement, leaving the infringement question undecided, creating uncertainty among the parties and others who seek to know just what products and processes they are free to use. The example is not fanciful. The Restatement (Second) of Judgments says that relitigation of an issue (say, infringement) decided in one suit “is not precluded” in a subsequent suit where the burden of persuasion “has shifted” from the “party against whom preclusion is sought . . . to his adversary.” Restatement (Second) of Judgments §28(4) (1980). Rather, the “[f ]ailure of one party to carry the burden of persuasion on an issue should not establish the issue in favor of an adversary who otherwise would have the burden of persuasion on that issue in later litigation.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4422, p. 592 (2d ed. 2002). Thus the declaratory judgment suit in the example above would have failed to achieve its object: to provide “an immediate and definitive determination of the legal rights of the parties.” Aetna, supra, at 241. Moreover, to shift the burden can, at least on occasion, create unnecessary complexity by making it difficult for the licensee to understand upon just what theory the patentee’s infringement claim rests. A complex patent can contain many pages of claims and limitations. A patent holder is in a better position than an alleged infringer to know, and to be able to point out, just where, how, and why a product (or process) infringes a claim of that patent. Until he does so, however, the alleged infringer may have to work in the dark, seeking, in his declaratory judg-ment complaint, to negate every conceivable infringement theory. Finally burden shifting here is difficult to reconcile with a basic purpose of the Declaratory Judgment Act. In MedImmune, Inc. v. Genentech, Inc., a case that similarly concerned a patent licensee that brought a declaratory judgment action after the patentee accused it of infringement, we wrote that the “ ‘very purpose’ ” of that Act is to “ ‘ameliorate’ ” the “dilemma” posed by “putting” one who challenges a patent’s scope “to the choice between abandoning his rights or risking” suit. 549 U. S., at 129 (quoting Abbott Laboratories v. Gardner, 387 U. S. 136, 152 (1967) ). In the absence of the declaratory judgment procedure, Medtronic would face the precise dilemma that MedImmune describes. Either Medtronic would have to abandon its right to challenge the scope of Mirowski’s patents, or it would have to stop paying royalties, risk losing an ordinary patent infringement lawsuit, and thereby risk liability for treble damages and attorney’s fees as well as injunctive relief. See 35 U. S. C. §§283–285 (providing for injunctive relief, treble damages, and—in “exceptional cases”—attorney’s fees as remedies for patent infringement). As in MedImmune, the declaratory judgment action rescues Medtronic from this dilemma. The Federal Circuit’s burden shifting rule does not deprive Medtronic of the right to seek a declaratory judgment. But it does create a significant obstacle to use of that action. It makes the declaratory judgment procedure—compared to, say, just refusing to pay royalties—dis-advantageous. To that extent it recreates the dilemma that the Declaratory Judgment Act sought to avoid. As we have made clear (and as we explain below), we are un-aware of any strong reason for creating that obstacle. B We are not convinced by the arguments raised to the contrary. First, the Federal Circuit thought it had found support in a recent case of this Court, Schaffer v. Weast, 546 U. S. 49 (2005) . In that case we referred to the “ordinary default rule” as placing upon the “plaintiffs” the “risk of failing to prove their claims.” Id., at 56. We added that that is because the plaintiffs are normally the parties “seeking relief.” Id., at 58. And Medtronic, not Mirowski, is the declaratory judgment “plaintif [f ]” here. Schaffer, however, was not a declaratory judgment case. And Schaffer described exceptions to its basic burden of proof rule. E.g., id., at 57 (when an element of a claim “can fairly be characterized as [an] affirmative defens[e],” the burden of proof “may be shifted to [the] defendants”); id., at 60 (“ ‘[T]he ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary’ ” (quoting United States v. New York, N. H. & H. R. Co., 355 U. S. 253 , n. 5 (1957)). For the reasons we have set forth in Part III–A, supra, declaratory judgment suits like the one at issue here constitute a further exception to the basic rule Schaffer described. Second, the Federal Circuit emphasized that its holding applied only in “the limited circumstance when an infringement counterclaim by a patentee is foreclosed by the continued existence of a license.” 695 F. 3d, at 1274. The fact that the Federal Circuit’s opinion is limited, how-ever, does not support its conclusion. The “limited cir-cumstance” it described is often present when a patent licensee faces an ordinary but disputed claim of infringement. And that “circumstance” is virtually identical to MedImmune, where we found a declaratory judgment action constitutionally permissible. In any event, the fact that a rule’s scope is limited cannot, by itself, show that the rule is legally justified. Third, an amicus supporting Mirowski fears that our holding, unlike the Federal Circuit’s rule, will “burden . . . patent owners” by permitting “a licensee . . . —at its sole discretion—[to] force the patentee into full-blown patent-infringement litigation.” Brief for Intellectual Property Owners Association as Amicus Curiae 9. The short answer to this argument, however, is that litigation can occur only in the presence of a genuine dispute, “ ‘of sufficient immediacy and reality,’ ” about the patent’s validity or its application. MedImmune, supra, at 127 (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941) ). Indeed, it was Mirowski that set the present dispute in motion by accusing Medtronic of infringement. And in such an instance, we see no convincing reason why burden of proof law should favor the patentee. The public interest, of course, favors the maintenance of a well-functioning patent system. But the “public” also has a “paramount interest in seeing that patent monopolies . . . are kept within their legitimate scope.” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806, 816 (1945) . A patentee “should not be . . . allowed to exact royalties for the use of an idea . . . that is beyond the scope of the patent monopoly granted.” Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U. S. 313 –350 (1971). And “[l]icensees may often be the only individuals with enough economic incentive” to litigate questions of a patent’s scope. Lear, Inc. v. Adkins, 395 U. S. 653, 670 (1969) . The general public interest considerations are, at most, in balance. They do not favor a change in the ordinary rule imposing the burden of proving infringement upon the patentee. For these reasons the judgment of the Federal Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MEDTRONIC, INC. v. MIROWSKI FAMILY VENTURES, LLC certiorari to the united states court of appeals for the federal circuit No. 12–1128. Argued November 5, 2013—Decided January 22, 2014 Petitioner Medtronic, Inc., designs, makes, and sells medical devices. Respondent Mirowski Family Ventures, LLC, owns patents relating to implantable heart stimulators. They have a licensing agreement that permits Medtronic to practice certain Mirowski patents in exchange for royalty payments, and that specifies procedures to identify products covered by the license and to resolve disputes between the parties. Pursuant to those procedures, Mirowski notified Medtronic of its belief that several of Medtronic’s products infringed the licensed patents, and Medtronic then challenged that assertion of infringement in a declaratory judgment action, while accumulating disputed royalties in an escrow account for distribution to the prevailing party. The District Court concluded that Mirowski, as the party asserting infringement, had the burden of proving infringement and that Mirowski had not met that burden. The Federal Circuit disagreed. It acknowledged that a patentee normally bears the burden of proof, but concluded that where the patentee is a declaratory judgment defendant and, like Mirowski, is foreclosed from asserting an infringement counterclaim by the continued existence of a licensing agreement, the party seeking the declaratory judgment, namely Medtronic, bears the burden of persuasion. Held: 1. The Federal Circuit did not lack subject-matter jurisdiction in this case. Title 28 U. S. C. §1338(a) gives federal district courts exclusive jurisdiction over “any civil action arising under any Act of Congress relating to patents,” and §1295(a)(1) gives the Federal Circuit appellate jurisdiction over any case where jurisdiction in the district court “was based, in whole or in part, on section 1338.” The Declaratory Judgment Act does not “extend” the federal courts’ “jurisdiction,” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671; and federal courts determining declaratory judgment jurisdiction often look to the “character” of the declaratory judgment defendant’s “threatened action,” Public Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 248, i.e., whether the defendant’s hypothetical “coercive action” “would necessarily present a federal question,” Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 19. Here, if Medtronic had acted consistent with the understanding of its rights that it seeks to establish through the declaratory judgment suit (by ceasing to pay royalties), Mirowski could terminate the license and bring a suit for infringement. That suit would arise under federal patent law because “patent law creates the cause of action.” Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 809. Thus, this declaratory judgment action, which avoids that hypothetical threatened action, also “arises under” federal patent law. See, e.g., Security-First Nat. Bank of Los Angeles v. Franchise Tax Bd. of Cal., 368 U.S. 3, 19. . 2. When a licensee seeks a declaratory judgment against a patentee that its products do not infringe the licensed patent, the patentee bears the burden of persuasion on the issue of infringement. . (a) This conclusion is strongly supported by three settled legal propositions: First, a patentee ordinarily bears the burden of proving infringement, see, e.g., Agawam Co. v. Jordan, 7 Wall. 583, 609; second, the “operation of the Declaratory Judgment Act” is only “procedural,” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, leaving “substantive rights unchanged,” Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 509; and third, “the burden of proof” is a “ ‘substantive’ aspect of a claim,” Raleigh v. Illinois Dept. of Revenue, 530 U.S. 15, 20–21. Practical considerations lead to the same conclusion. Shifting the burden based on the form of the action could create postlitigation uncertainty about a patent’s scope. It may also create unnecessary complexity by compelling a licensee to prove a negative. Finally, burden shifting is difficult to reconcile with the Declaratory Judgment Act’s purpose of ameliorating the “dilemma” posed by “putting” one challenging a patent’s scope “to the choice between abandoning his rights or risking” suit, MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129. To the extent that the Federal Circuit’s burden shifting rule makes the declaratory judgment procedure disadvantageous, that rule recreates the dilemma that the Declaratory Judgment Act sought to avoid. . (b) Several arguments to the contrary are unconvincing. First, Schaffer v. Weast, 546 U.S. 49, which noted the “ordinary default rule” that “plaintiffs” have the “risk of failing to prove their claims,” does not support the Federal Circuit’s conclusion. Schaffer was not a declaratory judgment case, and it described exceptions to its basic burden of proof rule. For reasons explained in this case, declaratory judgment suits like this one are an exception to Schaffer’s default rule. Second, the fact that the Federal Circuit limited its holding to the circumstance where a license forecloses an infringement counterclaim by a patentee cannot, by itself, show that the holding is legally justified. Third, contrary to one amicus’ concern that this Court’s holding will permit licensees to force patent holders into full-blown infringement litigation, such litigation can occur only when there is a genuine and sufficiently “immedia[te]” dispute about a patent’s validity or application, MedImmune, supra, at 127. Here, Mirowski set this dispute in motion by accusing Medtronic of infringement, and there is no convincing reason why burden of proof law should favor the patentee. General considerations relating to the public interest in maintaining a well-functioning patent system are, at most, in balance, and do not favor changing the ordinary burden of proof rule. . 695 F.3d 1266, reversed and remanded. Breyer, J., delivered the opinion for a unanimous Court.

In a patent licensing agreement between Medtronic, Inc., a firm that designs, makes, and sells medical devices, and Mirowski Family Ventures, LLC (a firm that owns patents relating to implantable heart stimulators), a patent licensor agreed to practice certain of the patents in exchange for royalty payments. In addition to paying royalties into an escrow account under the agreement, the parties also entered into a licensing agreement with Eli Lilly & Co., which then sublicensed the patents. The parties found themselves in the midst of an infringement dispute, in which the parties believed seven new MedTronic products violated various claims contained in two of its patents (related to devices that cause the heart's ventricles to contract simultaneously as the heart beats), and Medtronics thought that its products did not infringe the patents, either because the products fell outside the scope of the patent claims or because the patents were invalid. Basing the burden of proving infringement on the patentee, the Federal Circuit held that, when a patentee is a defendant in a declaratory judgment action, and the plaintiff (the potential infringer) seeks a judgment that he does not infringes the patent, that burden of proof bore no patentee or patentee equivalents, and bore the burden directly or indirectly for infringement. After the Court of Appeals reversed, holding that a different rule applies where that patentee (petitioner) is a patent defendant and is foreclosed from asserting an infringement counterclaim by the continued existence of a license, and where, as in this case, the party seeking a noninfringement judgment does not bear that burden. Held: When a patent licensee seeks a §1338(a) judgment against a patent patentee to establish that there is no infringement, the burden of proving infringement remains with patentee. This Court, in determining whether a patent action is a civil action arising under an Act of Congress relating to patents, must look to the nature of the action that the declarator, such patent defendant, could have brought, and that action, in the absence of a declARatory judgment, would necessarily present a federal question. Moreover, to shift the burden depending upon the form of an action could create postlitigation uncertainty about the patent scope, and could also create unnecessary complexity by making it difficult for the licensee to understand upon just what theory the patent ee's infringement claim rests. Finally, burden shifting here is difficult to reconcile with a basic purpose of the Declaratory Judgment Act, which is to avoid a genuine dispute in the presence of sufficient immediacy and reality to determine the validity or application of a patent. . 615 F. 3d 1266, reversed and remanded. MARSHALL, J., wrote the opinion of the Court in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEWART J., filed an opinion concurring in the judgment, post, p..

2013_12-515

https://www.oyez.org/cases/2013/12-515

. The question in this case is whether tribal sovereign immunity bars Michigan’s suit against the Bay Mills Indian Community for opening a casino outside Indian lands. We hold that immunity protects Bay Mills from this legal action. Congress has not abrogated tribal sovereign immunity from a State’s suit to enjoin gaming off a reservation or other Indian lands. And we decline to revisit our prior decisions holding that, absent such an abrogation (or a waiver), Indian tribes have immunity even when a suit arises from off-reservation commercial activity. Michigan must therefore resort to other mechanisms, including legal actions against the responsible individuals, to resolve this dispute. I The Indian Gaming Regulatory Act (IGRA or Act), 102Stat. 2467, 25 U. S. C. §2701 et seq., creates a framework for regulating gaming activity on Indian lands.[1] See §2702(3) (describing the statute’s purpose as establishing “regulatory authority . . . [and] standards for gaming on Indian lands”). The Act divides gaming into three classes. Class III gaming, the most closely regulated and the kind involved here, includes casino games, slot machines, and horse racing. See §2703(8). A tribe may conduct such gaming on Indian lands only pursuant to, and in compliance with, a compact it has negotiated with the sur-rounding State. See §2710(d)(1)(C). A compact typically prescribes rules for operating gaming, allocates law enforcement authority between the tribe and State, and provides remedies for breach of the agreement’s terms. See §§2710(d)(3)(C)(ii), (v). Notable here, IGRA itself authorizes a State to bring suit against a tribe for certain conduct violating a compact: Specifically, §2710(d)(7)(A)(ii) allows a State to sue in federal court to “enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact . . . that is in effect.” Pursuant to the Act, Michigan and Bay Mills, a federally recognized Indian Tribe, entered into a compact in 1993. See App. to Pet. for Cert. 73a–96a. The compact empowers Bay Mills to conduct class III gaming on “Indian lands”; conversely, it prohibits the Tribe from doing so outside that territory. Id., at 78a, 83a; see n. 1, supra. The compact also contains a dispute resolution mechanism, which sends to arbitration any contractual differences the parties cannot settle on their own. See App. to Pet. for Cert. 89a–90a. A provision within that arbitration section states that “[n]othing in this Compact shall be deemed a waiver” of either the Tribe’s or the State’s sovereign immunity. Id., at 90a. Since entering into the com-pact, Bay Mills has operated class III gaming, as authorized, on its reservation in Michigan’s Upper Peninsula. In 2010, Bay Mills opened another class III gaming facility in Vanderbilt, a small village in Michigan’s Lower Peninsula about 125 miles from the Tribe’s reservation. Bay Mills had bought the Vanderbilt property with accrued interest from a federal appropriation, which Congress had made to compensate the Tribe for 19th-century takings of its ancestral lands. See Michigan Indian Land Claims Settlement Act, 111Stat. 2652. Congress had directed that a portion of the appropriated funds go into a “Land Trust” whose earnings the Tribe was to use to improve or purchase property. According to the legislation, any land so acquired “shall be held as Indian lands are held.” §107(a)(3), id., at 2658. Citing that provision, Bay Mills contended that the Vanderbilt property was “Indian land” under IGRA and the compact; and the Tribe thus claimed authority to operate a casino there. Michigan disagreed: The State sued Bay Mills in federal court to enjoin operation of the new casino, alleging that the facility violated IGRA and the compact because it was located outside Indian lands. The same day Michigan filed suit, the federal Department of the Interior issued an opinion concluding (as the State’s complaint said) that the Tribe’s use of Land Trust earnings to purchase the Vanderbilt property did not convert it into Indian territory. See App. 69–101. The District Court entered a preliminary injunction against Bay Mills, which promptly shut down the new casino and took an interlocutory appeal. While that appeal was pending, Michigan amended its complaint to join various tribal officials as defendants, as well as to add state law and federal common law claims. The Court of Appeals for the Sixth Circuit then vacated the injunction, holding (among other things) that tribal sovereign immunity barred Michigan’s suit against Bay Mills unless Congress provided otherwise, and that §2710(d)(7)(A)(ii) did not authorize the action. See 695 F. 3d 406, 413–415 (2012). That provision of IGRA, the Sixth Circuit reasoned, permitted a suit against the Tribe to enjoin only gaming activity located on Indian lands, whereas the State’s complaint alleged that the Vanderbilt casino was outside such territory. See id., at 412.[2] Accordingly, the Court of Appeals concluded that Michigan could proceed, if at all, solely against the individual defendants, and it remanded to the District Court to consider those claims. See id., at 416–417.[3] Although no injunc-tion is currently in effect, Bay Mills has not reopened the Vanderbilt casino. We granted certiorari to consider whether tribal sovereign immunity bars Michigan’s suit against Bay Mills, 570 U. S. __ (2013), and we now affirm the Court of Appeals’ judgment. II Indian tribes are “ ‘domestic dependent nations’ ” that exercise “inherent sovereign authority.” Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498 U. S. 505, 509 (1991) (Potawatomi) (quoting Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831)). As dependents, the tribes are subject to plenary control by Congress. See United States v. Lara, 541 U. S. 193, 200 (2004) (“[T]he Constitution grants Congress” powers “we have consistently described as ‘plenary and exclusive’ ” to “legislate in respect to Indian tribes”). And yet they remain “separate sovereigns pre-existing the Constitution.” Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978) . Thus, unless and “until Congress acts, the tribes retain” their historic sovereign authority. United States v. Wheeler, 435 U. S. 313, 323 (1978) . Among the core aspects of sovereignty that tribes possess—subject, again, to congressional action—is the “common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo, 436 U. S., at 58. That immunity, we have explained, is “a necessary corollary to Indian sovereignty and self-governance.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 476 U. S. 877, 890 (1986) ; cf. The Federalist No. 81, p. 511 (B. Wright ed. 1961) (A. Hamilton) (It is “inherent in the nature of sovereignty not to be amenable” to suit without consent). And the qualified nature of Indian sovereignty modifies that principle only by placing a tribe’s immunity, like its other governmental powers and attributes, in Congress’s hands. See United States v. United States Fidelity & Guaranty Co., 309 U. S. 506, 512 (1940) (USF&G) (“It is as though the immunity which was theirs as sovereigns passed to the United States for their benefit”). Thus, we have time and again treated the “doctrine of tribal immunity [as] settled law” and dismissed any suit against a tribe absent congressional authorization (or a waiver). Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751, 756 (1998) . In doing so, we have held that tribal immunity applies no less to suits brought by States (including in their own courts) than to those by individuals. First in Puyallup Tribe, Inc. v. Department of Game of Wash., 433 U. S. 165 –168, 172–173 (1977), and then again in Potawatomi, 498 U. S., at 509–510, we barred a State seeking to enforce its laws from filing suit against a tribe, rejecting arguments grounded in the State’s own sovereignty. In each case, we said a State must resort to other remedies, even if they would be less “efficient.” Id., at 514; see Kiowa, 523 U. S., at 755 (“There is a difference between the right to demand compliance with state laws and the means available to enforce them”). That is because, as we have often stated (and contrary to the dissent’s novel pronouncement, see post, at 3 (opinion of Thomas, J.) (hereinafter the dissent)), tribal immunity “is a matter of federal law and is not subject to diminution by the States.” 523 U. S., at 756 (citing Three Affiliated Tribes, 476 U. S., at 891; Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 154 (1980) ). Or as we elsewhere explained: While each State at the Constitutional Convention surrendered its immunity from suit by sister States, “it would be absurd to suggest that the tribes”—at a conference “to which they were not even parties”—similarly ceded their immunity against state-initiated suits. Blatchford v. Native Village of Noatak, 501 U. S. 775, 782 (1991) . Equally important here, we declined in Kiowa to make any exception for suits arising from a tribe’s commercial activities, even when they take place off Indian lands. In that case, a private party sued a tribe in state court for defaulting on a promissory note. The plaintiff asked this Court to confine tribal immunity to suits involving conduct on “reservations or to noncommercial activities.” 523 U. S., at 758. We said no. We listed Puyallup, Potawa-tomi, and USF&G as precedents applying immunity to a suit predicated on a tribe’s commercial conduct—respectively, fishing, selling cigarettes, and leasing coal mines. 523 U. S., at 754–755. Too, we noted that Puyallup involved enterprise “both on and off [the Tribe’s] reservation.” 523 U. S., at 754 (quoting 433 U. S., at 167). “[O]ur precedents,” we thus concluded, have not previously “drawn the[ ] distinctions” the plaintiff pressed in the case. 523 U. S., at 755. They had established a broad principle, from which we thought it improper suddenly to start carving out exceptions. Rather, we opted to “defer” to Congress about whether to abrogate tribal immunity for off-reservation commercial conduct. Id., at 758, 760; see infra, at 17–18. Our decisions establish as well that such a congressional decision must be clear. The baseline position, we have often held, is tribal immunity; and “[t]o abrogate [such] immunity, Congress must ‘unequivocally’ express that purpose.” C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla., 532 U. S. 411, 418 (2001) (quoting Santa Clara Pueblo, 436 U. S., at 58). That rule of construction reflects an enduring principle of Indian law: Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian self-government. See, e.g., id., at 58–60; Iowa Mut. Ins. Co. v. LaPlante, 480 U. S. 9, 18 (1987) ; United States v. Dion, 476 U. S. 734 –739 (1986). The upshot is this: Unless Congress has authorized Michigan’s suit, our precedents demand that it be dismissed.[4] And so Michigan, naturally enough, makes two arguments: first, that IGRA indeed abrogates the Tribe’s immunity from the State’s suit; and second, that if it does not, we should revisit—and reverse—our decision in Kiowa, so that tribal immunity no longer applies to claims arising from commercial activity outside Indian lands. We consider—and reject—each contention in turn. III IGRA partially abrogates tribal sovereign immunity in §2710(d)(7)(A)(ii)—but this case, viewed most naturally, falls outside that term’s ambit. The provision, as noted above, authorizes a State to sue a tribe to “enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact.” See supra, at 2; Kiowa, 523 U. S., at 758 (citing the provision as an example of legislation “restrict[ing] tribal immunity from suit in limited circumstances”). A key phrase in that abrogation is “on Indian lands”—three words reflecting IGRA’s overall scope (and repeated some two dozen times in the statute). A State’s suit to enjoin gaming activity on Indian lands (assuming other requirements are met, see n. 6, infra) falls within §2710(d)(7)(A)(ii); a similar suit to stop gaming activity off Indian lands does not. And that creates a fundamental problem for Michigan. After all, the very premise of this suit—the reason Michigan thinks Bay Mills is acting unlawfully—is that the Vanderbilt casino is outside Indian lands. See App. to Pet. for Cert. 59a–60a. By dint of that theory, a suit to enjoin gaming in Vanderbilt is correspondingly outside §2710(d)(7)(A)(ii)’s abrogation of immunity. Michigan first attempts to fit this suit within §2710(d)(7)(A)(ii) by relocating the “class III gaming activity” to which it is objecting. True enough, Michigan states, the Vanderbilt casino lies outside Indian lands. But Bay Mills “authorized, licensed, and operated” that casino from within its own reservation. Brief for Michigan 20. According to the State, that necessary administrative action—no less than, say, dealing craps—is “class III gaming activ-ity,” and because it occurred on Indian land, this suit to enjoin it can go forward. But that argument comes up snake eyes, because numerous provisions of IGRA show that “class III gaming activity” means just what it sounds like—the stuff involved in playing class III games. For example, §2710(d)(3)(C)(i) refers to “the licensing and regulation of [a class III gaming] activity” and §2710(d)(9) concerns the “operation of a class III gaming activity.” Those phrases make perfect sense if “class III gaming activity” is what goes on in a casino—each roll of the dice and spin of the wheel. But they lose all meaning if, as Michigan argues, “class III gaming activity” refers equally to the off-site licensing or operation of the games. (Just plug in those words and see what happens.) See also §§2710(b)(2)(A), (b)(4)(A), (c)(4), (d)(1)(A) (similarly referring to class II or III “gaming activity”). The same holds true throughout the statute. Section 2717(a)(1) specifies fees to be paid by “each gaming operation that conducts a class II or class III gaming activity”—signifying that the gaming activity is the gambling in the poker hall, not the proceedings of the off-site administrative authority. And §§2706(a)(5) and 2713(b)(1) together describe a federal agency’s power to “clos[e] a gaming activity” for “substantial violation[s]” of law—e.g., to shut down crooked blackjack tables, not the tribal regulatory body meant to oversee them. Indeed, consider IGRA’s very first finding: Many tribes, Congress stated, “have licensed gaming activities on Indian lands,” thereby necessitating federal regulation. §2701(1). The “gaming activit[y]” is (once again) the gambling. And that means §2710(d)(7)(A)(ii) does not allow Michigan’s suit even if Bay Mills took action on its reservation to license or oversee the Vanderbilt facility. Stymied under §2710(d)(7)(A)(ii), Michigan next urges us to adopt a “holistic method” of interpreting IGRA that would allow a State to sue a tribe for illegal gaming off, no less than on, Indian lands. Brief for Michigan 30. Michi-gan asks here that we consider “IGRA’s text and structure as a whole.” Id., at 28. But (with one briefly raised exception) Michigan fails to identify any specific textual or structural features of the statute to support its proposed result.[5] Rather, Michigan highlights a (purported) anomaly of the statute as written: that it enables a State to sue a tribe for illegal gaming inside, but not outside, Indian country. “[W]hy,” Michigan queries, “would Congress authorize a state to obtain a federal injunction against illegal tribal gaming on Indian lands, but not on lands subject to the state’s own sovereign jurisdiction?” Reply Brief 1. That question has no answer, Michigan argues: Whatever words Congress may have used in IGRA, it could not have intended that senseless outcome. See Brief for Michigan 28. But this Court does not revise legislation, as Michigan proposes, just because the text as written creates an apparent anomaly as to some subject it does not address. Truth be told, such anomalies often arise from statutes, if for no other reason than that Congress typically legislates by parts—addressing one thing without examining all others that might merit comparable treatment. Rejecting a similar argument that a statutory anomaly (between property and non-property taxes) made “not a whit of sense,” we explained in one recent case that “Congress wrote the statute it wrote”—meaning, a statute going so far and no further. See CSX Transp., Inc. v. Alabama Dept. of Revenue, 562 U. S. ___, ___ (2011) (slip op., at 17–18). The same could be said of IGRA’s abrogation of tribal immunity for gaming “on Indian lands.” This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that (in Michigan’s words) Congress “must have intended” something broader. Brief for Michigan 32. And still less do we have that warrant when the consequence would be to expand an abrogation of immunity, because (as explained earlier) “Congress must ‘unequivocally’ express [its] purpose” to subject a tribe to litigation. C & L Enterprises, 532 U. S., at 418; see supra, at 7. In any event, IGRA’s history and design provide a more than intelligible answer to the question Michigan poses about why Congress would have confined a State’s authority to sue a tribe as §2710(d)(7)(A)(ii) does. Congress adopted IGRA in response to this Court’s decision in California v. Cabazon Band of Mission Indians, 480 U. S. 202 –222 (1987), which held that States lacked any regulatory authority over gaming on Indian lands. Cabazon left fully intact a State’s regulatory power over tribal gaming outside Indian territory—which, as we will soon show, is capacious. See infra, at 12–13. So the problem Congress set out to address in IGRA (Cabazon’s ouster of state authority) arose in Indian lands alone. And the solution Congress devised, naturally enough, reflected that fact. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 58 (1996) (“[T]he Act grants the States a power that they would not otherwise have, viz., some measure of author-ity over gaming on Indian lands”). Everything—literally everything—in IGRA affords tools (for either state or federal officials) to regulate gaming on Indian lands, and nowhere else. Small surprise that IGRA’s abrogation of tribal immunity does that as well.[6] And the resulting world, when considered functionally, is not nearly so “enigma[tic]” as Michigan suggests. Reply Brief 1. True enough, a State lacks the ability to sue a tribe for illegal gaming when that activity occurs off the reservation. But a State, on its own lands, has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory. Unless federal law provides differently, “Indians going beyond reservation boundaries” are subject to any generally applicable state law. See Wagnon v. Prairie Band Potawatomi Nation, 546 U. S. 95, 113 (2005) (quoting Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973) ). So, for example, Michigan could, in the first instance, deny a license to Bay Mills for an off-reservation casino. See Mich. Comp. Laws Ann. §§432.206–432.206a (West 2001). And if Bay Mills went ahead anyway, Michigan could bring suit against tribal officials or employees (rather than the Tribe itself ) seeking an injunction for, say, gambling without a license. See §432.220; see also §600.3801(1)(a) (West 2013) (designating illegal gambling facilities as public nuisances). As this Court has stated before, analogizing to Ex parte Young, 209 U. S. 123 (1908) , tribal immunity does not bar such a suit for injunctive relief against individuals, includ-ing tribal officers, responsible for unlawful conduct. See Santa Clara Pueblo, 436 U. S., at 59. And to the extent civil remedies proved inadequate, Michigan could resort to its criminal law, prosecuting anyone who maintains—or even frequents—an unlawful gambling establishment. See Mich. Comp. Laws Ann. §§432.218 (West 2001), 750.303, 750.309 (West 2004). In short (and contrary to the dissent’s unsupported assertion, see post, at 11), the panoply of tools Michigan can use to enforce its law on its own lands—no less than the suit it could bring on Indian lands under §2710(d)(7)(A)(ii)—can shutter, quickly and permanently, an illegal casino.[7] Finally, if a State really wants to sue a tribe for gaming outside Indian lands, the State need only bargain for a waiver of immunity. Under IGRA, a State and tribe negotiating a compact “may include . . . remedies for breach of contract,” 25 U. S. C. §2710(d)(3)(C)(v)—including a provision allowing the State to bring an action against the tribe in the circumstances presented here. States have more than enough leverage to obtain such terms because a tribe cannot conduct class III gaming on its lands without a compact, see §2710(d)(1)(C), and cannot sue to enforce a State’s duty to negotiate a compact in good faith, see Seminole Tribe, 517 U. S., at 47 (holding a State immune from such suits). So as Michigan forthrightly acknowl-edges, “a party dealing with a tribe in contract negotiations has the power to protect itself by refusing to deal absent the tribe’s waiver of sovereign immunity from suit.” Brief for Michigan 40. And many States have taken that path. See Brief for Seminole Tribe of Florida et al. as Amici Curiae 12–22 (listing compacts with waivers of tribal immunity). To be sure, Michigan did not: As noted earlier, the compact at issue here, instead of authorizing judicial remedies, sends disputes to arbitration and expressly retains each party’s sovereign immunity. See supra, at 2. But Michigan—like any State—could have insisted on a different deal (and indeed may do so now for the future, because the current compact has expired and remains in effect only until the parties negotiate a new one, see Tr. of Oral Arg. 21). And in that event, the limitation Congress placed on IGRA’s abrogation of tribal immunity—whether or not anomalous as an abstract matter—would have made no earthly difference. IV Because IGRA’s plain terms do not abrogate Bay Mills’ immunity from this suit, Michigan (and the dissent) must make a more dramatic argument: that this Court should “revisit[ ] Kiowa’s holding” and rule that tribes “have no immunity for illegal commercial activity outside their sovereign territory.” Reply Brief 8, 10; see post, at 1. Michigan argues that tribes increasingly participate in off-reservation gaming and other commercial activity, and operate in that capacity less as governments than as private businesses. See Brief for Michigan 38 (noting, among other things, that “tribal gaming revenues have more than tripled” since Kiowa). Further, Michigan contends, tribes have broader immunity from suits arising from such conduct than other sovereigns—most notably, because Congress enacted legislation limiting foreign nations’ immunity for commercial activity in the United States. See id., at 41; 28 U. S. C. §1605(a)(2). It is time, Michigan concludes, to “level[ ] the playing field.” Brief for Michigan 38. But this Court does not overturn its precedents lightly. Stare decisis, we have stated, “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 (1991) . Although “not an inexorable command,” id., at 828, stare decisis is a foundation stone of the rule of law, necessary to ensure that legal rules develop “in a principled and intelligible fashion,” Vasquez v. Hillery, 474 U. S. 254, 265 (1986) . For that reason, this Court has always held that “any departure” from the doctrine “demands special justification.” Arizona v. Rumsey, 467 U. S. 203, 212 (1984) . And that is more than usually so in the circumstances here. First, Kiowa itself was no one-off: Rather, in rejecting the identical argument Michigan makes, our decision reaffirmed a long line of precedents, concluding that “the doctrine of tribal immunity”—without any exceptions for commercial or off-reservation conduct—“is settled law and controls this case.” 523 U. S., at 756; see id., at 754–755; supra, at 5–7. Second, we have relied on Kiowa subsequently: In another case involving a tribe’s off-reservation commercial conduct, we began our analysis with Kiowa’s holding that tribal immunity applies to such activity (and then found that the Tribe had waived its protection). See C & L Enterprises, 532 U. S., at 418. Third, tribes across the country, as well as entities and individuals doing business with them, have for many years relied on Kiowa (along with its forebears and progeny), negotiating their contracts and structuring their transactions against a backdrop of tribal immunity. As in other cases involving contract and property rights, concerns of stare decisis are thus “at their acme.” State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) . And fourth (a point we will later revisit, see infra, at 17–20), Congress exercises primary authority in this area and “remains free to alter what we have done”—another factor that gives “special force” to stare decisis. Patterson v. McLean Credit Union, 491 U. S. 164 –173 (1989). To overcome all these reasons for this Court to stand pat, Michigan would need an ace up its sleeve.[8] But instead, all the State musters are retreads of assertions we have rejected before. Kiowa expressly considered the view, now offered by Michigan, that “when tribes take part in the Nation’s commerce,” immunity “extends beyond what is needed to safeguard tribal self-governance.” 523 U. S., at 758. (Indeed, as Kiowa noted, see id., at 757, Potawatomi had less than a decade earlier rejected Oklahoma’s identical contention that “because tribal business activities . . . are now so detached from traditional tribal interests,” immunity “no longer makes sense in [the commercial] context,” 498 U. S., at 510.) So too, the Kiowa Court comprehended the trajectory of tribes’ commercial activity (which is the dissent’s exclusive rationale for ignoring stare decisis, see post, at 10–13). In the preceding decade, tribal gaming revenues had increased more than thirty fold[9] (dwarfing the still strong rate of growth since that time, see supra, at 14–15); and Kiowa noted the flourishing of other tribal enterprises, ranging from cigarette sales to ski resorts, see 523 U. S., at 758. Moreover, the Kiowa Court understood that other sovereigns did not enjoy similar immunity for commercial activities outside their territory; that seeming “anomal[y]” was a principal point in the dissenting opinion. See id., at 765 (Stevens, J., dissenting). Kiowa did more, in fact, than acknowledge those arguments; it expressed a fair bit of sympathy toward them. See id., at 758 (noting “reasons to doubt the wisdom of perpetuating the doctrine” as to off-reservation commercial conduct). Yet the decision could not have been any clearer: “We decline to draw [any] distinction” that would “confine [immunity] to reservations or to noncommercial activities.” Ibid. We ruled that way for a single, simple reason: because it is fundamentally Congress’s job, not ours, to determine whether or how to limit tribal immunity. The special brand of sovereignty the tribes retain—both its nature and its extent—rests in the hands of Congress. See Lara, 541 U. S., at 200; Wheeler, 435 U. S., at 323. Kiowa chose to respect that congressional responsibility (as Potawatomi had a decade earlier) when it rejected the precursor to Michigan’s argument: Whatever our view of the merits, we explained, “we defer to the role Congress may wish to exercise in this important judgment.” 523 U. S., at 758; see Potawatomi, 498 U. S., at 510 (stating that because “Congress has always been at liberty to dispense with” or limit tribal immunity, “we are not disposed to modify” its scope). Congress, we said—drawing an analogy to its role in shaping foreign sovereign immunity[10]—has the greater capacity “to weigh and accommodate the competing policy concerns and reliance interests” involved in the issue. 523 U. S., at 759. And Congress repeatedly had done just that: It had restricted tribal immunity “in limited circum-stances” (including, we noted, in §2710(d)(7)(A)(ii)), while “in other statutes” declaring an “intention not to alter” the doctrine. Id., at 758; see Potawatomi, 498 U. S., at 510 (citing statutory provisions involving tribal immunity). So too, we thought, Congress should make the call whether to curtail a tribe’s immunity for off-reservation commer-cial conduct—and the Court should accept Congress’s judgment. All that we said in Kiowa applies today, with yet one more thing: Congress has now reflected on Kiowa and made an initial (though of course not irrevocable) decision to retain that form of tribal immunity. Following Kiowa, Congress considered several bills to substantially modify tribal immunity in the commercial context. Two in particular—drafted by the chair of the Senate Appropriations Subcommittee on the Interior—expressly referred to Kiowa and broadly abrogated tribal immunity for most torts and breaches of contract. See S. 2299, 105th Cong., 2d Sess. (1998); S. 2302, 105th Cong., 2d Sess. (1998). But instead of adopting those reversals of Kiowa, Congress chose to enact a far more modest alternative requiring tribes either to disclose or to waive their immunity in contracts needing the Secretary of the Interior’s approval. See Indian Tribal Economic Development and Contract Encouragement Act of 2000, §2, 114Stat. 46 (codified at 25 U. S. C. §81(d)(2)); see also F. Cohen, Handbook of Federal Indian Law §7.05[1][b], p. 643 (2012). Since then, Congress has continued to exercise its plenary authority over tribal immunity, specifically preserving immunity in some contexts and abrogating it in others, but never adopting the change Michigan wants.[11] So rather than confronting, as we did in Kiowa, a legislative vacuum as to the precise issue presented, we act today against the backdrop of a congressional choice: to retain tribal immunity (at least for now) in a case like this one.[12] Reversing Kiowa in these circumstances would scale the heights of presumption: Beyond upending “long-established principle[s] of tribal sovereign immunity,” that action would replace Congress’s considered judgment with our contrary opinion. Potawatomi, 498 U. S., at 510. As Kiowa recognized, a fundamental commitment of Indian law is judicial respect for Congress’s primary role in defining the contours of tribal sovereignty. See 523 U. S., at 758–760; see also Santa Clara Pueblo, 436 U. S., at 60 (“[A] proper respect . . . for the plenary authority of Congress in this area cautions that [the courts] tread lightly”); Cohen, supra, §2.01[1], at 110 (“Judicial deference to the paramount authority of Congress in matters concerning Indian policy remains a central and indispensable principle of the field of Indian law”). That commitment gains only added force when Congress has already reflected on an issue of tribal sovereignty, including immunity from suit, and declined to change settled law. And that force must grow greater still when Congress considered that issue partly at our urging. See Kiowa, 523 U. S., at 758 (hinting, none too subtly, that “Congress may wish to exercise” its authority over the question presented). Having held in Kiowa that this issue is up to Congress, we cannot reverse ourselves because some may think its conclusion wrong. Congress of course may always change its mind—and we would readily defer to that new decision. But it is for Congress, now more than ever, to say whether to create an exception to tribal immunity for off-reservation commercial activity. As in Kiowa—except still more so—“we decline to revisit our case law[,] and choose” instead “to defer to Congress.” Id., at 760. V As “domestic dependent nations,” Indian tribes exercise sovereignty subject to the will of the Federal Government. Cherokee Nation, 5 Pet., at 17. Sovereignty implies immunity from lawsuits. Subjection means (among much else) that Congress can abrogate that immunity as and to the extent it wishes. If Congress had authorized this suit, Bay Mills would have no valid grounds to object. But Congress has not done so: The abrogation of immunity in IGRA applies to gaming on, but not off, Indian lands. We will not rewrite Congress’s handiwork. Nor will we create a freestanding exception to tribal immunity for all off-reservation commercial conduct. This Court has declined that course once before. To choose it now would entail both overthrowing our precedent and usurping Congress’s current policy judgment. Accordingly, Michigan may not sue Bay Mills to enjoin the Vanderbilt casino, but must instead use available alternative means to accomplish that object. We affirm the Sixth Circuit’s judgment and remand the case for further proceedings consistent with this opinion. It is so ordered.Notes 1 The Act defines “Indian lands” as “(A) all lands within the limits of any Indian reservation; and (B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual[,] or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.” §2703(4). 2 The Sixth Circuit framed part of its analysis in jurisdictional terms, holding that the District Court had no authority to consider Michigan’s IGRA claim because §2710(d)(7)(A)(ii) provides federal jurisdiction only over suits to enjoin gaming on Indian lands (and Michigan’s suit was not that). See 695 F. 3d, at 412–413. That reasoning is wrong, as all parties agree. See Brief for Michigan 22–25; Brief for Bay Mills 23–24; Brief for United States as 16–17. The general federal-question statute, , gives a district court subject matter jurisdiction to decide any claim alleging a violation of IGRA. Nothing in §2710(d)(7)(A)(ii) or any other provision of IGRA limits that grant of jurisdiction (although those provisions may indicate that a party has no statutory right of action). See v. , –644 (2002). 3 The Court of Appeals’ decision applied not only to Michigan’s case, but also to a consolidated case brought by the Little Traverse Bay Bands of Odawa Indians, which operates a casino about 40 miles from the Vanderbilt property. Little Traverse subsequently dismissed its suit, rather than seek review in this Court. 4 Michigan does not argue here that Bay Mills waived its immunity from suit. Recall that the compact expressly preserves both the Tribe’s and the State’s sovereign immunity. See , at 2. 5 Michigan’s single reference to another statutory provision, , does not advance its argument, because that term includes a geographical limitation similar to the one appearing in §2710(d)(7)(A)(ii). Section 1166 makes a State’s gambling laws applicable “in Indian country” as federal law, and then gives the Federal Government “exclusive jurisdiction over criminal prosecutions” for violating those laws. , (d). Michigan briefly argues that, by negative implication, §1166 gives a State the power “to bring a suit to enforce [its] anti-gambling laws in Indian country,” and that this power applies “even when the defendant is an Indian tribe.” Brief for Michigan 26 (emphasis added). Bay Mills and the United States vigorously contest both those propositions, arguing that §1166 gives States no civil enforcement authority at all, much less as against a tribe. See Brief for Bay Mills 30–31; Brief for United States as 20–22. But that dispute is irrelevant here. Even assuming Michigan’s double inference were valid, §1166 would still allow a State to sue a tribe for gaming only “in Indian country.” So Michigan’s suit, alleging that illegal gaming occurred on lands, could no more proceed under §1166 than under §2710(d)(7)(A)(ii). 6 Indeed, the statutory abrogation does not even cover all suits to enjoin gaming on Indian lands, thus refuting the very premise of Michigan’s argument-from-anomaly. Section 2710(d)(7)(A)(ii), recall, allows a State to sue a tribe not for all “class III gaming activity located on Indian lands” (as Michigan suggests), but only for such gaming as is “conducted in violation of any Tribal-State compact. . . that is in effect.” Accordingly, if a tribe opens a casino on Indian lands before negotiating a compact, the surrounding State cannot sue; only the Federal Government can enforce the law. See . To be precise, then, IGRA’s authorization of suit mirrors not the full problem created (a vacuum of state authority over gaming in Indian country) but, more particularly, Congress’s “carefully crafted” compact-based solution to that difficulty. v. , –74 (1996). So Michigan’s binary challenge—if a State can sue to stop gaming in Indian country, why not off?—fails out of the starting gate. In fact, a State sue to enjoin all gaming in Indian country; that gaming must, in addition, violate an agreement that the State and tribe have mutually entered. 7 Michigan contends that these alternative remedies may be more intrusive on, or less respectful of, tribal sovereignty than the suit it wants to bring. See Brief for Michigan 15; Tr. of Oral Arg. 18. Bay Mills, which presumably is better positioned to address that question, emphatically disagrees. See at 32–33. And the law supports Bay Mills’ position: Dispensing with the immunity of a sovereign for fear of pursuing available remedies against its officers or other individuals would upend all known principles of sovereign immunity. 8 Adhering to is particularly appropriate here given that the State, as we have shown, has many alternative remedies: It has no need to sue the Tribe to right the wrong it alleges. See , at 12–13. We need not consider whether the situation would be different if no alternative remedies were available. We have never, for example, specifically addressed (nor, so far as we are aware, has Congress) whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct. The argument that such cases would present a “special justification” for abandoning precedent is not before us. v. , . 9 See Nat. Gambling Impact Study Comm’n, Final Report, pp. 6–1 to 6–2 (1999), online at http://govinfo.library.unt.edu/ngisc/reports/6.pdf (as visited Apr. 30, 2014, and available in Clerk of Court’s case file). 10 explained that Congress, in the Foreign Sovereign Immunities Act of 1976, , “den[ied] immunity for the commercial acts of a foreign nation,” codifying an earlier State Department document, known as the Tate Letter, announcing that policy. 523 U. S., at 759. Michigan takes issue with ’s account, maintaining that this Court took the lead in crafting the commercial exception to foreign sovereign immunity, and so should feel free to do the same thing here. See Reply Brief 6–7. But the decision Michigan cites, v. , , does not show what the State would like. First, Michigan points to a part of the opinion commanding only four votes, see , at 695–706 (opinion of White, J.); the majority’s decision was based on the act of state doctrine, not on anything to do with foreign sovereign immunity, see at 690–695. And second, even the plurality opinion relied heavily on the views of the Executive Branch as expressed in the Tate Letter—going so far as to attach that document as an appendix. See at 696–698 (opinion of White, J.); , at 711–715 (appendix 2 to opinion of the Court). The opinion therefore illustrates what highlighted: this Court’s historic practice of “deferr[ing] to the decisions of the political branches,” rather than going it alone, when addressing foreign sovereign immunity. v. , . 11 Compare, , Prevent All Cigarette Trafficking Act of 2009, §§2(e), (3)(a), (preserving immunity), with Arizona Water Settlements Act, §§213(a)(2), 301, (abrogating immunity). The dissent’s claim that “Congress has never granted tribal sovereign immunity in shape or form,” ,at 13, apparently does not take into account the many statutes in which Congress preserved or otherwise ratified tribal immunity. See, , ; see generally , 498 U. S., at 510 (“Congress has consistently reiterated its approval of the immunity doctrine”). 12 The dissent principally counters that this history is not “relevan[t]” because was a “common-law decision.” ,at 14. But that is to ignore what (in line with prior rulings) specifically told Congress: that tribal immunity, far from any old common law doctrine, lies in Congress’s hands to configure. See 523 U. S., at 758; , 498 U. S., at 510; v. , –60 (1978). When we inform Congress that it has primary responsibility over a sphere of law, and invite Congress to consider a specific issue within that sphere, we cannot deem irrelevant how Congress responds.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MICHIGAN v. BAY MILLS INDIAN COMMUNITY et al. certiorari to the united states court of appeals for the sixth circuit No. 12–515. Argued December 2, 2013—Decided May 27, 2014 The State of Michigan, petitioner, entered into a compact with respondent Bay Mills Indian Community pursuant to the Indian Gaming Regulatory Act (IGRA). See 25 U. S. C. §2710(d)(1)(C). The compact authorizes Bay Mills to conduct class III gaming activities (i.e., to operate a casino) on Indian lands located within the State’s borders, but prohibits it from doing so outside that territory. Bay Mills later opened a second casino on land it had purchased through a congressionally established land trust. The Tribe claimed it could operate a casino there because the property qualified as Indian land. Michigan disagreed and sued the Tribe under §2710(d)(7)(A)(ii), which allows a State to enjoin “class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact.” The District Court granted the injunction, but the Sixth Circuit vacated. It held that tribal sovereign immunity barred the suit unless Congress provided otherwise, and that §2710(d)(7)(A)(ii) only authorized suits to enjoin gaming activity located “on Indian lands,” whereas Michigan’s complaint alleged the casino was outside such territory. Held: Michigan’s suit against Bay Mills is barred by tribal sovereign immunity. . (a) As “ ‘domestic dependent nations,’ ” Indian tribes exercise “inherent sovereign authority” that is subject to plenary control by Congress. Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509. Unless and “until Congress acts, the tribes retain” their historic sovereign authority. United States v. Wheeler, 435 U.S. 313, 323. Among the core aspects of sovereignty that tribes possess—subject to congressional action—is the “common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58. That immunity applies whether a suit is brought by a State, see, e.g., Puyallup Tribe, Inc. v. Department of Game of Wash., 433 U.S. 165, or arises from a tribe’s commercial activities off Indian lands, see Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751. Therefore, unless Congress has “unequivocally” authorized Michigan’s suit, C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla., 532 U.S. 411, 418, it must be dismissed. . (b) IGRA’s plain terms do not authorize this suit. Section 2710(d)(7)(A)(ii) partially abrogates tribal immunity with respect to class III gaming located “on Indian lands,” but the very premise of Michigan’s suit is that Bay Mills’ casino is unlawful because it is outside Indian lands. Michigan argues that the casino is authorized, licensed, and operated from within the reservation, and that such administrative action constitutes “class III gaming activity.” However, numerous other IGRA provisions make clear that “class III gaming activity” refers to the gambling that goes on in a casino, not the off-site licensing of such games. See, e.g., §§2710(d)(3)(C)(i), (d)(9). IGRA’s history and design also explain why Congress would have authorized a State to enjoin illegal tribal gaming on Indian lands but not on lands subject to the State’s own sovereign jurisdiction. Congress adopted IGRA in response to California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221–222, which held that States lacked regulatory authority over gaming on Indian lands but left intact States’ regulatory power over tribal gaming outside Indian territory. A State therefore has many tools to enforce its law on state land that it does not possess in Indian territory, including, e.g., bringing a civil or criminal action against tribal officials rather than the tribe itself for conducting illegal gaming. A State can also use its leverage in negotiating an IGRA compact to bargain for a waiver of the tribe’s immunity. . (c) Michigan urges the Court to overrule Kiowa and hold that tribal immunity does not apply to commercial activity outside Indian territory. However, “any departure” from precedent “demands special justification,” Arizona v. Rumsey, 467 U.S. 203, 212, and Michigan offers nothing more than arguments already rejected in Kiowa. Kiowa rejected these arguments because it is fundamentally Congress’s job to determine whether or how to limit tribal immunity; Congress had restricted tribal immunity “in limited circumstances” like §2710(d)(7)(A)(ii), while “in other statutes” declaring an “intention not to alter it.” 523 U. S., at 758. Kiowa therefore chose to “defer to the role Congress may wish to exercise in this important judgment.” Ibid. Congress has since reflected on Kiowa and decided to retain tribal immunity in a case like this. Having held that the issue is up to Congress, the Court cannot reverse itself now simply because some may think Congress’s conclusion wrong. . 695 F.3d 406, affirmed and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, and Sotomayor, JJ., joined. Sotomayor, J., filed a concurring opinion. Scalia, J., filed a dissenting opinion. Thomas, J., filed a dissenting opinion, in which Scalia, Ginsburg, and Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion.

Section 2710(d)(7)(A)(ii) of the Indian Gaming Regulatory Act (Act) authorizes a State to sue a tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact that is in effect. Pursuant to the Act, Michigan and Bay Mills, a federally recognized Indian Tribe, entered into a compact empowers Bay Mills to conduct such gaming on its reservation in Michigan's Upper Peninsula, and prohibits the Tribe from doing so outside that territory. The compact also contains a dispute resolution mechanism, which sends to arbitration any contractual differences the parties cannot settle on their own. Michigan disagreed with Bay Mills on the ground that the Vanderbilt property was Indian land under the Act and the compact, and thus claimed authority to operate a casino there. Michigan then filed suit against Bay Mills in Federal District Court, alleging that the new casino was located outside the compact and violated its sovereign immunity. The court vacated the injunction and entered an interlocutory injunction against the purchase of the property, holding that tribal sovereign immunity barred the Michigan suit unless Congress provided otherwise. The Court of Appeals ultimately concluded that Michigan could proceed, if at all, solely against the individual defendants, and remanded to the District Court to consider those claims. Held: Tribal sovereign immunity bars Michigan's suit against the Indian Community for opening a casino outside Indian lands. . (a) Tribal immunity applies no less to suits brought by States (including in their own courts) than to those by individuals. See, e.g., id., at 58. This case, viewed most naturally, falls outside the term tribal immunity, since the abrogation of immunity in the Act partially abrogates the Tribe's immunity from the State of Michigan and Michigan has been held to apply to claims arising from commercial activity outside Indian land. Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian self-government. Unless Congress has authorized Michigan to bring this suit, our precedents demand that it be dismissed. Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751, 751. Thus, this Court has treated the "doctrine of tribal immunity [as] settled law," and dismissed any suit against a tribe absent congressional authorization (or a waiver). . (b) This case falls outside that term, since Congress has not abrogated tribal immunity from a State's suit. It is fundamentally Congress' job, not ours, to determine whether or how to limit tribal immunity. In fact, the qualified nature of Indian sovereignty modifies that principle only by placing a tribe's immunity, like its other governmental powers and attributes, in Congress' hands. If Congress had authorized Michigan, it would have no valid grounds to object. However, Congress has never granted tribal immunity in shape or form. Here, Michigan highlights a (purported) anomaly of the Act as written: it enables a State, on its own lands, to sue a tribe for illegal gaming inside, but not outside, Indian country. And Michigan has no legitimate reason to believe that Congress, in the Foreign Sovereign Immunities Act of 1976,denied immunity for the commercial acts of a foreign nation. There is no merit to Michigan's argument that the compact preserves both the Tribe and the State's sovereign immunity, and that, by negative implication, § 1166 gives a State the power to bring a suit to enforce its anti-gambling laws in Indian country, even when the defendant is an Indian tribe. Moreover, the fact that Congress adopted IGRA in response to California v. Cabazon Band of Mission Indians, which held that States lacked any regulatory authority over tribal gaming on Indian land, rather than going it alone, does not render the constitutional question whether to abrogate tribal immunity anomalous as an abstract matter. Rather, the problem Congress set out to address in IGRA (Cabazon's ouster of state authority) arose in Indian lands alone, and the solution Congress devised, naturally enough, reflected that fact. Nothing in the statute or any other provision of IGRA limits that grant of jurisdiction, and Congress exercises primary authority in this area and, in any event, Congress must express its purpose to subject tribes to litigation. P.. (c) The question whether tribal immunity should be retained in a case like this one should be answered by Michigan (and the rest of the State) on the basis of a more than intelligible answer to the question Michigan poses about why Congress would have confined a State' authority to sue the tribe as §2710 (d) does. Section 1166, instead of authorizing judicial remedies, makes a State gambling laws applicable "in Indian country" as federal law, and then gives the Federal Government exclusive jurisdiction over criminal prosecutions for violating those laws. But even assuming Michigan's double inference, §11

2013_12-1036

https://www.oyez.org/cases/2013/12-1036

. Under the Class Action Fairness Act of 2005 (CAFA or Act), defendants in civil suits may remove “mass actions” from state to federal court. CAFA defines a “mass action” as “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.” 28 U. S. C. §1332(d)(11)(B)(i). The question presented is whether a suit filed by a State as the sole plaintiff constitutes a “mass action” under CAFA where it includes a claim for restitution based on injuries suffered by the State’s citizens. We hold that it does not. According to CAFA’s plain text, a “mass action” must involve monetary claims brought by 100 or more persons who propose to try those claims jointly as named plaintiffs. Because the State of Mississippi is the only named plaintiff in the instant action, the case must be remanded to state court. I A Congress enacted CAFA in order to “amend the procedures that apply to consideration of interstate class actions.” 119Stat. 4. In doing so, Congress recognized that “[c]lass action lawsuits are an important and valuable part of the legal system.” CAFA §2. It was concerned, however, that certain requirements of federal diversity jurisdic-tion, 28 U. S. C. §1332, had functioned to “kee[p] cases of national importance” in state courts rather than federal courts. CAFA §2. CAFA accordingly loosened the requirements for diversity jurisdiction for two types of cases—“class actions” and “mass actions.” The Act defines “class action” to mean “any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure.” 28 U. S. C. §1332(d)(1)(B). And it defines “mass action” to mean “any civil action . . . in which monetary relief claims of 100 or more persons are proposedto be tried jointly on the ground that the plaintiffs’claims involve common questions of law or fact.” §1332(d)(11)(B)(i). For class and mass actions, CAFA expanded diversity jurisdiction in two key ways. First, it replaced the ordinary requirement of complete diversity of citizenship among all plaintiffs and defendants, see State Farm Fire & Casualty Co. v. Tashire, 386 U. S. 523 –531 (1967), with a requirement of minimal diversity. Under that re-quirement, a federal court may exercise jurisdiction over a class action if “any member of a class of plaintiffs isa citizen of a State different from any defendant.” §1332(d)(2)(A). The same rule applies to mass actions. See §1332(d)(11)(A) (“[A] mass action shall be deemed . . . removable under [§§1332(d)(2) through (d)(10)]”). Second, whereas §1332(a) ordinarily requires each plaintiff’s claim to exceed the sum or value of $75,000, see Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546 –555 (2005), CAFA grants federal jurisdiction over class and mass actions in which the aggregate amount in contro-versy exceeds $5 million. §§1332(d)(2), (d)(6), (d)(11)(A). Class and mass actions filed in state court that satisfy CAFA’s requirements may be removed to federal court, 28 U. S. C. §1453, but federal jurisdiction in a mass action, unlike a class action, “shall exist only over those plaintiffs” whose claims individually satisfy the $75,000 amount in controversy requirement, §1332(d)(11)(B)(i).[1] B Respondents manufacture liquid crystal displays, or LCDs. In March 2011, the State of Mississippi sued them in state court, alleging that they had formed an international cartel to restrict competition and raise prices inthe LCD market. The State claimed that these actions vio-lated two Mississippi statutes: the Mississippi Antitrust Act, Miss. Code Ann. §75–21–1 et seq. (2009), and the Mississippi Consumer Protection Act, §75–24–1 et seq. (2009 and Cum. Supp. 2013). The State sought injunctive relief and civil penalties under both statutes, along with punitive damages, costs, and attorney’s fees. It also sought restitution for its own purchases “of LCD products and the purchases of its citizens.” App. to Brief in Opposition 65a; §75–24–11. Respondents filed a notice to remove the case from state to federal court, arguing that the case was removable under CAFA as either a “class action” or a “mass action.” The District Court ruled that the suit did not qualify asa “class action” because it was “not brought pursuant to Federal Rule of Civil Procedure 23 or a ‘similar State statute or rule of judicial procedure.’ ” 876 F. Supp. 2d 758, 769 (SD Miss. 2012). But it held that the suit did qualify as a “mass action,” because “[i]t is a civil action ‘in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.’ ” Id., at 771. The District Court reached that conclusion on the basis of Fifth Circuit precedent in Louisiana ex rel. Caldwell v. Allstate Ins. Co., 536 F. 3d 418 (CA5 2008), which it understood to “stan[d] for the proposition that the words ‘persons’ and ‘plaintiffs’ in [the mass action definition] are to be defined as ‘real parties in interest.’ ” 876 F. Supp. 2d, at 771. Applying that rule, the court found that 100 or more unidentified Mississippi consumers had purchased LCD screens and were therefore real parties in interest to the State’s restitution claim. Ibid. The court noted the “possibility that a ‘mass action’ should be thought of as a ‘mass joinder,’ ”—that is, as a suit involving 100 or more “named plaintiffs.” Ibid., n. 9. But it deemed that interpretation to be foreclosed by Caldwell. The District Court nonetheless remanded the case to state court on the basis of CAFA’s “general public exception,” which excludes from the “mass action” definition “any civil action in which . . . all of the claims in the action are asserted on behalf of the general public (and not on behalf of individual claimants or members of a purported class) pursuant to a State statute specifically authorizing such action.” 28 U. S. C. §1332(d)(11)(B)(ii)(III). The Court of Appeals reversed. 701 F. 3d 796 (CA5 2012). It agreed with the District Court’s determination that Mississippi’s suit is not a “class action” under CAFA.[2] Id., at 799. It also agreed that, under Caldwell, the suit qualifies as a “mass action” because “[t]he real parties in interest in Mississippi’s suit are those more than 100 . . . individual citizens who purchased the [LCD] products within Mississippi.” 701 F. 3d, at 800. It disagreed, however, with the District Court’s ruling that the suit falls within the general public exception. Id., at 802–803.[3] Judge Elrod concurred in the judgment, noting that after the Fifth Circuit’s decision in Caldwell, three Courts of Appeals had deemed similar lawsuits not to be mass actions removable under CAFA.[4] We granted certiorari to resolve this split of authority, 569 U. S. ___ (2013), and now reverse. II A Our analysis begins with the statutory text. Sebelius v. Cloer, 569 U. S. ___, ___ (2013) (slip op., at 6). The statute provides: “[T]he term mass action means any civil action (except a [class action]) in which monetary relief claims of 100 or more persons are proposed to be tried jointly onthe ground that the plaintiffs’ claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a).” §1332(d)(11)(B)(i). The parties do not dispute that this provision encompasses suits that are brought jointly by 100 or more named plaintiffs who propose to try their claims together. The question is whether the provision also includes suits brought by fewer than 100 named plaintiffs on the theory that there may be 100 or more unnamed persons who are real parties in interest as beneficiaries to any of the plaintiffs’ claims. Respondents argue that the provision covers such suits because “claims of 100 or more persons” refers to “the persons to whom the claim belongs, i.e., the real parties in interest to the claims,” regardless of whether those persons are named or unnamed. Brief for Respondents 19 (emphasis in original). We disagree. To start, the statute says “100 or more persons,” not “100 or more named or unnamed real parties in interest.” Had Congress intended the latter, it easily could have drafted language to that effect. Indeed, when Congress wanted a numerosity requirement in CAFA to be satisfied by counting unnamed parties in interest in addition to named plaintiffs, it explicitly said so: CAFA provides that in order for a class action to be removable, “the numberof members of all proposed plaintiff classes” must be 100 or greater, §1332(d)(5)(B), and it defines “class members” to mean “the persons (named or unnamed) who fall within the definition of the proposed or certified class,” §1332(d)(1)(D). Congress chose not to use the phrase “named or unnamed” in CAFA’s mass action provision, a decision we understand to be intentional. See Dean v. United States, 556 U. S. 568, 573 (2009) (“ ‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’ ”). More fundamentally, respondents’ interpretation cannot be reconciled with the fact that the “100 or more persons” referred to in the statute are not unspecified individuals who have no actual participation in the suit, but instead the very “plaintiffs” referred to later in the sentence—the parties who are proposing to join their claims in a single trial. Congress made this understanding evident in two key ways. First, we presume that “ ‘Congress is aware of existing law when it passes legislation.’ ” Hall v. United States, 566 U. S. ___, ___ (2012) (slip op., at 9). Here, Congress used the terms “persons” and “plaintiffs” just as they are used in Federal Rule of Civil Procedure 20, governing party joinder. Where §1332(d)(11)(B)(i) requires that the “claims of 100 or more persons [must be] proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact,” Rule 20 provides that “[p]ersons may join in one action as plaintiffs if they assert any right to relief jointly . . . and any question of law or fact common to all plaintiffs will arise in the action.” Thus, just as it is used in Rule 20, the term “persons” in §1332(d)(11)(B)(i) refers to the individuals who are proposing to join as plaintiffs in a single action. Second, respondents’ interpretation of “persons” cannot square with the statute’s requirement that the claims of the “100 or more persons” must be proposed for joint trial “on the ground that the plaintiffs’ claims involve common questions of law or fact.” §1332(d)(11)(B)(i). It is difficult to imagine how the claims of one set of unnamed individ-uals could be proposed for joint trial on the ground that the claims of some completely different group of named plaintiffs share common questions. The better understanding is that Congress meant for the “100 or more persons” and the proposed “plaintiffs” to be one and the same. Recognizing that the statute’s use of the term “persons” could be a reference to proposed plaintiffs, respondents assert that “plaintiffs,” like “persons,” should be construed to “includ[e] both named and unnamed real parties in in-terest.” Brief for Respondents 24. But that stretchesthe meaning of “plaintiff” beyond recognition. The term “plaintiff” is among the most commonly understood of legal terms of art: It means a “party who brings a civil suit in a court of law.” Black’s Law Dictionary 1267 (9th ed. 2009); see also Webster’s Third New International Dictionary 1729 (1961) (defining “plaintiff” to mean “one who commences a personal action or lawsuit,” or “the complaining party in any litigation”). It certainly does not mean “anyone, named or unnamed, whom a suit may benefit,” as respondents suggest.[5] Moreover, Congress used the term “plaintiffs” twice in the mass action provision. The provision encompasses actions in which monetary “claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions,” and it then provides that “jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requiremen[t]” of $75,000. §1332(d)(11)(B)(i). If respondents are correct that “plaintiffs” means unnamed parties in interest where it is used the first time, then so too the second. After all, the “pre-sumption that a given term is used to mean the same thing throughout a statute” is “at its most vigorous when a term is repeated within a given sentence.” Brown v. Gardner, 513 U. S. 115, 118 (1994) . Yet if the term “plaintiffs” is stretched to include all unnamed individuals with an interest in the suit, then §1332(d)(11)(B)(i)’s requirement that “jurisdiction shall exist only over those plaintiffs whose claims [exceed $75,000]” becomes an administrative nightmare that Congress could not possibly have intended, see Griffin v. Oceanic Contractors, Inc., 458 U. S. 564, 575 (1982) . How is a district court to identify the unnamed parties whose claims in a given case are for less than $75,000? Would the court in this case, for instance, have to hold an evidentiary hearing to determine the identity of each of the hundreds of thousands of unnamed Mississippi citizens who purchased one of respondents’ LCD products between 1996 and 2006 (the period alleged in the complaint)? Even if it could identify every such person, how would it ascertain the amount in controversy for each individual claim? Respondents suggest that “[i]n some circumstances, defendants may be able to identify from their payment records any persons who may have claims for overpayments,” but they stop notably short of claiming to possess such decades-old records themselves. Brief for Respondents 25. Furthermore, what would happen with individuals whose claims were valued at less than $75,000? The District Court in this case suggested that if the suit were deemed a mass action, it would sever the claim for “restitution for losses incurred by individuals claiming less than or equal to $75,000 each” and remand that claim back to state court, while allowing the other claims (including the restitution claims exceeding $75,000) to proceed in federal court. 876 F. Supp. 2d, at 775. Even respondents do not defend that outcome, presumably because it would mean that much of the State’s lawsuit could proceed in state court after all, simultaneously with the newly severed parallel federal action.[6] We think it unlikely that Congress intended that federal district courts engage in these unwieldy inquiries. By contrast, interpreting “plaintiffs” in accordance with its usual meaning—to refer to the actual named parties who bring an action—leads to a straightforward, easy to administer rule under which a court would examine whether the plaintiffs have pleaded in good faith the requisite amount. See Horton v. Liberty Mut. Ins. Co., 367 U. S. 348, 353 (1961) . Our decision thus comports with the commonsense observation that “when judges must decide jurisdictional matters, simplicity is a virtue.” See Standard Fire Ins. Co. v. Knowles, 568 U. S. ___, ___ (2013) (slip op., at 6). B Our reading of the mass action provision’s text is reinforced by the statutory context. See Mohamad v. Palestinian Authority, 566 U. S. ___, ___ (2012) (slip op., at 5–6). First, the provision of CAFA governing transfer motions confirms our view that the term “plaintiffs” refers to actual named parties as opposed to unnamed real parties in interest. That provision, §1332(d)(11)(C)(i), provides that once a mass action has been removed to federal court, it “shall not thereafter be transferred to any other court . . . unless a majority of the plaintiffs in the action request transfer.” If respondents are correct that “plaintiffs” means “unnamed parties in interest,” it will be surpassingly difficult for a court to decide in a case like this one whether an action may be transferred. The District Court itself acknowledged this problem, noting that it would have to identify and communicate with “hundreds of thousands if not millions of real parties in interest” to “pol[l] [them] about their preferred forum” if respondents’ interpretation were correct. 876 F. Supp. 2d, at 777. The context in which the mass action provision was enacted lends further support to our conclusion. Congress’ overriding concern in enacting CAFA was with class actions. See Preamble, 119Stat. 4 (describing CAFA as an “[a]ct to amend the procedures that apply to consideration of interstate class actions”); CAFA §2 (Congress’ findings with respect to class actions). The mass action provision thus functions largely as a backstop to ensure that CAFA’s relaxed jurisdictional rules for class actions cannot be evaded by a suit that names a host of plaintiffs rather than using the class device. Respondents’ argument fails to recognize this key distinction. Their position is ultimately that “[t]his action is similar to a class action,” such that it should be removed. Brief for Respondents 27. But if Congress had wanted representative actions brought by States as sole plaintiffs to be removable under CAFA on the theory that they are in substance no different from class actions, it would have done so through the class action provision, not the one governing mass actions.[7] III Rather than relying on the text of CAFA as the source of its real party in interest inquiry, the Court of Appeals appeared to find such an inquiry necessary on the basis of what it understood to be a background principle: that “federal courts look to the substance of the action and not only at the labels that the parties may attach.” Caldwell, 536 F. 3d, at 424. This was error. We have interpreted the diversity jurisdiction statute to require courts in certain contexts to look behind the pleadings to ensure that parties are not improperly creating or destroying diversity jurisdiction. We have held, for example, that a plaintiff may not keep a case out of federal court by fraudulently naming a nondiverse defendant. Wecker v. National Enameling & Stamping Co., 204 U. S. 176 –186 (1907). Nor may a plaintiff create diversity by collusively assigning his interest in an action. Kramer v. Caribbean Mills, Inc., 394 U. S. 823 –830 (1969); see also 28 U. S. C. §1359. And in cases involving a State or state official, we have inquired into the real party in interest because a State’s presence as a party will destroy complete diversity. Missouri, K. & T. R. Co. v. Missouri Railroad and Warehouse Comm’rs, 183 U. S. 53 –59 (1901). But the question in this case is not simply whether there exists some background principle of analyzing the real parties in interest to a suit; the question is whether Congress intended that courts engage in that analysis when deciding whether a suit is a mass action. Recognizing this fact, respondents do not argue that the real party in interest inquiry employed in the above cases somehow supersedes the text of CAFA; they instead argue that we should read CAFA in light of those cases because “ ‘Congress expects its statutes to be read in conformity with this Court’s precedents.’ ” Brief for Respondents 19 (quoting United States v. Wells, 519 U. S. 482, 495 (1997) ). For two reasons, however, we conclude that Congress did not intend the background inquiry to apply to the mass action provision. First, it makes sense to infer Congress’ intent to incorporate a background principle into a new statute where the principle has previously been applied in a similar manner. But that is not the case here. The background real party in interest inquiry identifies what party’s (or parties’) citizenship should be considered in determining diversity. The inquiry that respondents urge is quite dif-ferent: It is an attempt to count up additional unnamed parties in order to satisfy the mass action provision’s numerosity requirement. Respondents offer no reason to believe that Congress intended to extend the real party inquiry to this new circumstance, and so any presumption that Congress wanted to incorporate the inquiry, if it exists in this case at all, would be comparatively weak. Cf. Meyer v. Holley, 537 U. S. 280, 286 (2003) (“Congress’ silence, while permitting an inference that Congress intended to apply ordinary background tort principles, cannot show that it intended to apply an unusual modification of those rules”).[8] Second, even if the background principle had previously been applied in the manner sought by respondents, Congress provided express indications that it did not want the principle to apply to the mass action provision. It specified that “the term ‘mass action’ shall not include any civil action in which . . . the claims are joined upon motion of a defendant.” §1332(d)(11)(B)(ii)(II). By prohibiting defendants from joining unnamed individuals to a lawsuit in order to turn it into a mass action, Congress demonstrated its focus on the persons who are actually proposing to join together as named plaintiffs in the suit. Requiring district courts to pierce the pleadings to identify unnamed persons interested in the suit would run afoul of that intent. Moreover, as already discussed, Congress repeatedly used the word “plaintiffs” to describe the 100 or more persons whose claims must be proposed for a joint trial. That word refers to actual, named parties—a concept inherently at odds with the background inquiry into unnamed real parties in interest, who by definition are never plaintiffs. Congress thus clearly displaced a background real party in interest inquiry, even assuming one might otherwise apply. Cf. Barnhart v. Sigmon Coal Co., 534 U. S. 438, 459, n. 16 (2002) . * * * For the foregoing reasons, the judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 CAFA provides certain exceptions for class actions that involve matters of principally local or state concern. See 28 U. S. C. §§1332(d)(3)–(5). None of them are at issue in this case. 2 Respondents do not challenge this ruling before this Court. 3 The Court of Appeals did so on the rationale that because individual Mississippi consumers are real parties in interest to the State’s restitution claim, the general public exception’s requirement that “all ofthe claims” must be “asserted on behalf of the general public (and not on behalf of individual claimants)” was not satisfied. . 4 See .v., 699 F. 3d 385 (CA4 2012); v., 672 F. 3d 661 (CA9 2012); v., 665 F. 3d 768 (CA7 2011). 5 Congress could of course require a real party in interest inquiry in a statute that uses the term “plaintiff” simply by saying so. But it has not done that here. 6 Respondents suggest that a district court might be able to exercise supplemental jurisdiction over the claims that fall beneath $75,000, thereby avoiding the problem of identifying and remanding such claims to the state court. We need not decide the issue here, but we note that at least one Court of Appeals has rejected that view. See v., 483 F. 3d 1184, 1206, n. 51 (CA11 2007) (holding that because supplemental jurisdiction does not apply where a federal statute “ ‘expressly provide[s] otherwise,’ ” , the mass action provision’s explicit exclusion of jurisdiction over claims beneath $75,000 negates supplemental jurisdiction over such claims). 7 The parties both point to the “general public exception,” §1332(d)(11)(B)(ii)(III), in support of their respective positions. But because the foregoing arguments resolve this case, we need not construe that provision here. 8 We have also applied a real party in interest inquiry in contexts other than that of determining citizenship for purposes of diversity jurisdiction. See v. , –376 (1923) (state sovereign immunity); v. , –393 (1938) (original jurisdiction). But even if we were to indulge in a presumption that Congress somehow intended to import the inquiry applied in those particular contexts into the mass action provision’s distinct numerosity requirement, we would find any such presumption overridden by CAFA’s text.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MISSISSIPPI ex rel. HOOD, ATTORNEY GENERAL v. AU OPTRONICS CORP. et al. certiorari to the united states court of appeals for the fifth circuit No. 12–1036. Argued November 6, 2013—Decided January 14, 2014 Congress enacted the Class Action Fairness Act of 2005 (CAFA) to lower diversity jurisdiction requirements in class actions and, as relevant here, in mass actions, i.e., civil actions “in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact,” 28 U. S. C. §1332(d)(11)(B)(i). Petitioner Mississippi sued respondent liquid crystal display (LCD) manufacturers in state court, alleging violations of state law and seeking, inter alia, restitution for LCD purchases made by itself and its citizens. Respondents sought to remove the case to federal court. The District Court held that the suit qualified as a mass action under §1332(d)(11)(B)(i), but remanded the suit to state court on the ground that it fell within CAFA’s “general public” exception, §1332(d)(11)(B)(ii)(III). The Fifth Circuit reversed, agreeing with the District Court that the suit was a mass action but finding the general public exception inapplicable. Held: Because Mississippi is the only named plaintiff, this suit does not constitute a mass action under CAFA. . (a) Contrary to respondents’ argument, CAFA’s “100 or more persons” phrase does not encompass unnamed persons who are real parties in interest to claims brought by named plaintiffs. Congress knew how to draft language to that effect when it intended such a meaning, see, e.g., §§1332(d)(5)(B), 1332(d)(1)(D). That it did not do so in the mass action provision indicates that Congress did not want the provision’s numerosity requirement to be satisfied by counting unnamed individuals who possess an interest in the suit. Respondents’ understanding also cannot be reconciled with the fact that the “100 or more persons” are not unspecified individuals with no participation in the suit but are the “plaintiffs” subsequently referred to in the provision, i.e., the very parties proposing to join their claims in a single trial. This is evident in two key ways. First, CAFA uses “persons” and “plaintiffs” the same way they are used in Federal Rule of Civil Procedure 20, which refers to “persons” as individuals who are proposing to join as “plaintiffs” in a single action. Second, it is difficult to imagine how the “claims of 100 or more” unnamed individuals could be “proposed to be tried jointly on the ground that the . . . claims” of some completely different group of named plaintiffs “involve common questions of law or fact.” Construing “plaintiffs” to include both named and unnamed real parties in interest would stretch the meaning of “plaintiff” beyond recognition. A “plaintiff” is commonly understood to be a party who brings a civil suit in a court of law, not anyone, named or unnamed, whom a suit may benefit. Moreover, respondents’ definition would also have to apply to the mass action provision’s subsequent reference to “plaintiffs” in the phrase “jurisdiction shall exist only over those plaintiffs whose claims [exceed $75,000],” §1332(d)(11)(B)(i). See Brown v. Gardner, 513 U.S. 115, 118. This would result in an administrative nightmare that Congress could not possibly have intended, see Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, where district courts would have to identify hundreds (or in this case, hundreds of thousands) of unnamed parties whose claims are for less than $75,000 and then decide how to dispose of their claims. . (b) Statutory context reinforces this Court’s reading of the mass action provision. CAFA provides that once removal occurs, a case shall not be transferred to another court “unless a majority of the plaintiffs in the action request transfer.” §1332(d)(11)(C)(i). If “plaintiffs” included unnamed parties, it would be surpassingly difficult for a court to poll the enormous number of real parties in interest to decide whether an action may be transferred. Moreover, respondents’ position that the action here should be removed because it is similar to a class action fails to recognize that the mass action provision functions largely as a backstop to ensure that CAFA’s relaxed class action jurisdictional rules cannot be evaded by a suit that names a host of plaintiffs rather than using the class device. Had Congress wanted CAFA to authorize removal of representative actions brought by States as sole plaintiffs on respondents’ theory, it would have done so through the class action provision, not the mass action provision. . (c) This Court has interpreted the diversity jurisdiction statute to require courts in certain contexts to look behind the pleadings to ensure that parties are not improperly creating or destroying diversity jurisdiction, see, e.g., Wecker v. National Enameling & Stamping Co., 204 U.S. 176, 185–186, but Congress did not intend this background inquiry to apply to the mass action provision. First, it could make sense to incorporate the background inquiry into the mass action provision if the inquiry had previously been applied in a similar manner. That is not the case here, however, and so any presumption that Congress wanted to incorporate the inquiry, if it exists at all, would be comparatively weak. Second, even if the background principle had previously been applied in this manner, Congress expressly indicated that it did not want the principle to apply to the mass action provision both through the textual indicators described above and by prohibiting defendants from joining unnamed individuals to a lawsuit in order to turn it into a mass action, §1332(d)(11)(B)(ii)(II). Requiring district courts to identify unnamed persons interested in the suit would run afoul of that intent. . 701 F.3d 796, reversed and remanded. Sotomayor, J., delivered the opinion for a unanimous Court.

Under the Class Action Fairness Act of 2005 (CAFA), defendants in civil suits may remove from state to federal court any monetary relief claims of 100 or more persons proposed to try jointly on the ground that the plaintiffs' claims involve common questions of law or fact. Under the Act, a suit filed by a State as the sole plaintiff in a class action may be removed from state court to Federal District Court, but federal jurisdiction in such a suit must exist only over those plaintiffs whose claims individually satisfy the $75,000-plus jurisdictional requirement. Because the State of Mississippi is the only named plaintiff in the instant action, the case must be remanded to state court. The District Court ruled that the suit did not qualify as a "mass action" under CAFA because it was not brought pursuant to Federal Rule of Civil Procedure 23 or a similar State statute or rule of judicial procedure, and that it was removable as either a "class action" or as a mass joinder because the real parties in interest in the suit were those more than 100 individual citizens who purchased the products within Mississippi. However, the Court of Appeals reversed, holding that, under Louisiana ex rel. Caldwell v. Allstate Ins. Co., 536 F. 3d 418 (CA5 2008), the suit was not removable under the Act because it included a claim for restitution based on injuries suffered by the State's citizens. Held: The suit does not constitute a mass action removable under California law. . (a) The term "plaintiffs" refers to actual named parties as opposed to unnamed real parties, and thus the term in interest here refers to unnamed parties in interests. That term is also understood to mean unnamed parties who are unnamed in interest, who by definition are never plaintiffs. More fundamentally, respondents' interpretation cannot be reconciled with the fact that the named plaintiffs referred to in the Act are not unspecified individuals who have no actual participation in the action, but instead the very plaintiffs who are proposing to join their claims in a single trial. Congress made this understanding evident in two key ways. First, it is assumed that Congress is aware of existing law when it passes legislation. Second, respondents cannot square with the Act's requirement that the claims of the "100 or more... persons" must be proposed for joint trial on the ground that the plaintiffs share common questions. Here, Congress used the terms "persons" and the proposed plaintiffs in interest just as they are used in Fed.Rule Civ.Proc. 20, governing party joinder. To infer Congress' intent to incorporate a background principle into a new statute where the principle has previously been applied in a similar manner would make sense, but that is not the case here. The background real party in interest inquiry identifies what party's (or parties') citizenship should be considered in determining diversity, and is quite dif-ferent. Moreover, the term is meant to refer to actual, named parties, a concept inherently at odds with the background inquiry into unnamed real party-in-interests. It is unlikely that Congress intended to extend the inquiry, if it exists in this case at all, so that any presumption that Congress wanted to incorporate the inquiry into the mass action provision would be comparatively weak. Pp. 456 U. S. 568. (b) Nor is the Act providing certain exceptions for class actions that involve matters of principally local or state concern at issue here. None of them are at issue. Respondents do not challenge this ruling before this Court. Rather, they suggest that a district court might be able to exercise supplemental jurisdiction over the claims that fall beneath $100,000, thereby avoiding the problem of identifying and remanding such claims to the state court, and any such presumption would be overridden by CAFA. §1332(d)(11)(B)(ii)(III). This reading of the Act is reinforced by the statutory context. First, the Act governing transfer motions confirms that the term, as well as the general public exception, provides that, once a mass action has been removed to Federal court, it shall not thereafter be transferred to any other court unless the court in any other court within the specified jurisdictional requirements are correct. Second, it appears that Congress did not intend the inquiry applied in those particular contexts into the Act provision's distinct numerosity requirement, since, even assuming one might otherwise apply, it did not do so. Requiring courts to focus on unnamed named plaintiffs as defendants does not turn upon any express indications that Congress actually sought to apply the mass-action principle in order to turn the unnamed named parties into named plaintiffs, and Congress thus clearly displaced a background real party in interest inquiry, even if it might otherwise have applied. Thus, Congress clearly displaced such a background inquiry even assuming that one might otherwise apply. Even if Congress had wanted representative actions brought by States as sole plaintiffs

2013_12-1281

https://www.oyez.org/cases/2013/12-1281

. Ordinarily the President must obtain “the Advice and Consent of the Senate” before appointing an “Office[r] of the United States.” U. S. Const., Art. II, §2, cl. 2. But the Recess Appointments Clause creates an exception. It gives the President alone the power “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Art. II, §2, cl. 3. We here consider three questions about the application of this Clause. The first concerns the scope of the words “recess of the Senate.” Does that phrase refer only to an inter-session recess (i.e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session? We conclude that the Clause applies to both kinds of recess. The second question concerns the scope of the words “vacancies that may happen.” Does that phrase refer only to vacancies that first come into existence during a recess, or does it also include vacancies that arise prior to a recess but continue to exist during the recess? We conclude that the Clause applies to both kinds of vacancy. The third question concerns calculation of the length of a “recess.” The President made the appointments here at issue on January 4, 2012. At that time the Senate was in recess pursuant to a December 17, 2011, resolution providing for a series of brief recesses punctuated by “pro forma session[s],” with “no business . . . transacted,” every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923 (2011) (hereinafter 2011 S. J.). In calculating the length of a recess are we to ignore the pro forma sessions, thereby treating the series of brief recesses as a single, month-long recess? We conclude that we cannot ignore these pro forma sessions. Our answer to the third question means that, when the appointments before us took place, the Senate was in the midst of a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments here at issue. I The case before us arises out of a labor dispute. The National Labor Relations Board (NLRB) found that a Pepsi-Cola distributor, Noel Canning, had unlawfully refused to reduce to writing and execute a collective-bargaining agreement with a labor union. The Board ordered the distributor to execute the agreement and to make employees whole for any losses. Noel Canning, 358 N. L. R. B. No. 4 (2012). The Pepsi-Cola distributor subsequently asked the Court of Appeals for the District of Columbia Circuit to set the Board’s order aside. It claimed that three of the five Board members had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for it to act. See 29 U. S. C. §160(f) (providing for judicial review); §153(a) (providing for a 5-member Board); §153(b) (providing for a 3-member quorum); New Process Steel, L. P. v. NLRB, 560 U. S. 674 –688 (2010) (in the absence of a lawfully appointed quorum, the Board cannot exercise its powers). The three members in question were Sharon Block, Richard Griffin, and Terence Flynn. In 2011 the President had nominated each of them to the Board. As of January 2012, Flynn’s nomination had been pending in the Senate awaiting confirmation for approximately a year. The nominations of each of the other two had been pending for a few weeks. On January 4, 2012, the President, invoking the Recess Appointments Clause, appointed all three to the Board. The distributor argued that the Recess Appointments Clause did not authorize those appointments. It pointed out that on December 17, 2011, the Senate, by unanimous consent, had adopted a resolution providing that it would take a series of brief recesses beginning the following day. See 2011 S. J. 923. Pursuant to that resolution, the Senate held pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012. Ibid.; 158 Cong. Rec. S1–S11 (Jan. 3–20, 2012). The President’s January 4 appointments were made between the January 3 and January 6 pro forma sessions. In the distributor’s view, each pro forma session terminated the immediately preceding recess. Accordingly, the appointments were made during a 3-day adjournment, which is not long enough to trigger the Recess Appointments Clause. The Court of Appeals agreed that the appointments fell outside the scope of the Clause. But the court set forth different reasons. It held that the Clause’s words “the recess of the Senate” do not include recesses that occur within a formal session of Congress, i.e., intra-session recesses. Rather those words apply only to recesses between those formal sessions, i.e., inter-session recesses. Since the second session of the 112th Congress began on January 3, 2012, the day before the President’s appointments, those appointments occurred during an intra-session recess, and the appointments consequently fell outside the scope of the Clause. 705 F. 3d 490, 499–507 (CADC 2013). The Court of Appeals added that, in any event, the phrase “vacancies that may happen during the recess” applies only to vacancies that come into existence during a recess. Id., at 507–512. The vacancies that Members Block, Griffin, and Flynn were appointed to fill had arisen before the beginning of the recess during which they were appointed. For this reason too the President’s appointments were invalid. And, because the Board lacked a quorum of validly appointed members when it issued its order, the order was invalid. 29 U. S. C. §153(b); New Process Steel, supra. We granted the Solicitor General’s petition for certio-rari. We asked the parties to address not only the Court of Appeals’ interpretation of the Clause but also the distributor’s initial argument, namely, “[w]hether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.” 570 U. S. ___ (2013). We shall answer all three questions presented. We recognize that the President has nominated others to fill the positions once occupied by Members Block, Griffin, and Flynn, and that the Senate has confirmed these successors. But, as the parties recognize, the fact that the Board now unquestionably has a quorum does not moot the controversy about the validity of the previously entered Board order. And there are pending before us petitions from decisions in other cases involving challenges to the appointment of Board Member Craig Becker. The President appointed Member Becker during an intra-session recess that was not punctuated by pro forma ses-sions, and the vacancy Becker filled had come into existence prior to the recess. See Congressional Research Service, H. Hogue, M. Carey, M. Greene, & M. Bearden, The Noel Canning Decision and Recess Appointments Made from 1981–2013, p. 28 (Feb. 4, 2013) (hereinaf-ter The Noel Canning Decision); NLRB, Members ofthe NLRB since 1935, online at http://www.nlrb.gov/who-we-are/board/members-nlrb-1935 (all Internet materials as visited June 24, 2014, and available in Clerk of Court’s case file). Other cases involving similar challenges are also pending in the Courts of Appeals. E.g., NLRB v. New Vista Nursing & Rehabilitation, No. 11–3440 etc. (CA3). Thus, we believe it is important to answer all three questions that this case presents. II Before turning to the specific questions presented, we shall mention two background considerations that we find relevant to all three. First, the Recess Appointments Clause sets forth a subsidiary, not a primary, method for appointing officers of the United States. The immediately preceding Clause—Article II, Section 2, Clause 2—provides the primary method of appointment. It says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States” (emphasis added). The Federalist Papers make clear that the Founders intended this method of appointment, requiring Senate approval, to be the norm (at least for principal officers). Alexander Hamilton wrote that the Constitution vests the power of nomination in the President alone because “one man of discernment is better fitted to analise and estimate the peculiar qualities adapted to particular offices, than a body of men of equal, or perhaps even of superior dis-cernment.” The Federalist No. 76, p. 510 (J. Cooke ed. 1961). At the same time, the need to secure Senate approval provides “an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” Id., at 513. Hamilton further explained that the “ordinary power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers; and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorise the President singly to make temporary appointments.” Id., No. 67, at 455. Thus the Recess Appointments Clause reflects the tension between, on the one hand, the President’s continuous need for “the assistance of subordinates,” Myers v. United States, 272 U. S. 52, 117 (1926) , and, on the other, the Senate’s practice, particularly during the Republic’s early years, of meeting for a single brief session each year, see Art. I, §4, cl. 2; Amdt. 20, §2 (requiring the Senate to “assemble” only “once in every year”); 3 J. Story, Commentaries on the Constitution of the United States §1551, p. 410 (1833) (it would be “burthensome to the senate, and expensive to the public” to require the Senate to be “perpetually in session”). We seek to interpret the Clause as granting the President the power to make appointments during a recess but not offering the President the author-ity routinely to avoid the need for Senate confirmation. Second, in interpreting the Clause, we put significant weight upon historical practice. For one thing, the inter-pretive questions before us concern the allocation of power between two elected branches of Government. Long ago Chief Justice Marshall wrote that “a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice.” McCulloch v. Maryland, 4 Wheat. 316, 401 (1819). And we later confirmed that “[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions” regulating the relationship between Congress and the President. The Pocket Veto Case, 279 U. S. 655, 689 (1929) ; see also id., at 690 (“[A] practice of at least twenty years duration ‘on the part of the executive department, acquiesced in by the legislative department, . . . is entitled to great regard in determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful meaning’ ” (quoting State v. South Norwalk, 77 Conn. 257, 264, 58 A. 759, 761 (1904))). We recognize, of course, that the separation of powers can serve to safeguard individual liberty, Clinton v. City of New York, 524 U. S. 417 –450 (1998) (Kennedy, J., concurring), and that it is the “duty of the judicial department”—in a separation-of-powers case as in any other—“to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803). But it is equally true that the longstanding “practice of the government,” McCulloch, supra, at 401, can inform our determination of “what the law is,” Marbury, supra, at 177. That principle is neither new nor controversial. As James Madison wrote, it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908). And our cases have continually confirmed Madison’s view. E.g., Mistretta v. United States, 488 U. S. 361, 401 (1989) ; Dames & Moore v. Regan, 453 U. S. 654, 686 (1981) ; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 –611 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, supra, at 689–690; Ex parte Grossman, 267 U. S. 87 –119 (1925); United States v. Midwest Oil Co., 236 U. S. 459 –474 (1915); McPherson v. Blacker, 146 U. S. 1, 27 (1892) ; McCulloch, supra; Stuart v. Laird, 1 Cranch 299 (1803). These precedents show that this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era. See Mistretta, supra, 400–401 (“While these [practices] spawned spirited discussion and frequent criticism, . . . ‘traditional ways of conducting government . . . give meaning’ to the Constitution” (quoting Youngstown, supra, at 610) (Frankfurter, J., concurring)); Regan, supra, at 684 (“[E]ven if the pre-1952 [practice] should be disregarded, congressional acquiescence in [a practice] since that time supports the President’s power to act here”); The Pocket Veto Case, supra, at 689–690 (postfounding practice is entitled to “great weight”); Grossman, supra, at 118–119 (postfounding practice “strongly sustains” a “construction” of the Constitution). There is a great deal of history to consider here. Presidents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President have recognized that recess appointments can be both necessary and appropriate in certain circumstances. We have not previously interpreted the Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached. III The first question concerns the scope of the phrase “the recess of the Senate.” Art. II, §2, cl. 3 (emphasis added). The Constitution provides for congressional elections every two years. And the 2-year life of each elected Congress typically consists of two formal 1-year sessions, each separated from the next by an “inter-session recess.” Congressional Research Service, H. Hogue, Recess Appointments: Frequently Asked Questions 2 (2013). The Senate or the House of Representatives announces an inter-session recess by approving a resolution stating that it will “adjourn sine die,” i.e., without specifying a date to return (in which case Congress will reconvene when the next formal session is scheduled to begin). The Senate and the House also take breaks in the midst of a session. The Senate or the House announces any such “intra-session recess” by adopting a resolution stating that it will “adjourn” to a fixed date, a few days or weeks or even months later. All agree that the phrase “the recess of the Senate” covers inter-session recesses. The question is whether it includes intra-session recesses as well. In our view, the phrase “the recess” includes an intra-session recess of substantial length. Its words taken literally can refer to both types of recess. Founding-era dictionaries define the word “recess,” much as we do today, simply as “a period of cessation from usual work.” 13 The Oxford English Dictionary 322–323 (2d ed. 1989) (hereinafter OED) (citing 18th- and 19th-century sources for that definition of “recess”); 2 N. Webster, An American Dictionary of the English Language (1828) (“[r]emission or suspension of business or procedure”); 2 S. Johnson, A Dictionary of the English Language 1602–1603 (4th ed. 1773) (hereinafter Johnson) (same). The Founders themselves used the word to refer to intra-session, as well as to inter-session, breaks. See, e.g., 3 Records of the Federal Convention of 1787, p. 76 (M. Farrand rev. 1966) (hereinafter Farrand) (letter from George Washington to John Jay using “the recess” to refer to an intra-session break of the Constitutional Convention); id., at 191 (speech of Luther Martin with a similar usage); 1 T. Jefferson, A Manualof Parliamentary Practice §LI, p. 165 (2d ed. 1812) (describing a “recess by adjournment” which did not end a session). We recognize that the word “the” in “the recess” might suggest that the phrase refers to the single break separating formal sessions of Congress. That is because the word “the” frequently (but not always) indicates “a particular thing.” 2 Johnson 2003. But the word can also refer “to a term used generically or universally.” 17 OED 879. The Constitution, for example, directs the Senate to choose a President pro tempore “in the Absence of the Vice-President.” Art. I, §3, cl. 5 (emphasis added). And the Federalist Papers refer to the chief magistrate of an ancient Achaean league who “administered the government in the recess of the Senate.” The Federalist No. 18, at 113 (J. Madison) (emphasis added). Reading “the” generically in this way, there is no linguistic problem applying the Clause’s phrase to both kinds of recess. And, in fact, the phrase “the recess” was used to refer to intra-session recesses at the time of the founding. See, e.g., 3 Farrand 76 (letter from Washington to Jay); New Jersey Legislative-Council Journal, 5th Sess., 1st Sitting 70, 2d Sitting 9 (1781) (twice referring to a 4-month, intra-session break as “the Recess”); see also Brief for Petitioner 14–16 (listing examples). The constitutional text is thus ambiguous. And we believe the Clause’s purpose demands the broader interpretation. The Clause gives the President authority to make appointments during “the recess of the Senate” so that the President can ensure the continued functioning of the Federal Government when the Senate is away. The Senate is equally away during both an inter-session and an intra-session recess, and its capacity to participate in the appointments process has nothing to do with the words it uses to signal its departure. History also offers strong support for the broad interpretation. We concede that pre-Civil War history is not helpful. But it shows only that Congress generally took long breaks between sessions, while taking no significant intra-session breaks at all (five times it took a break of a week or so at Christmas). See Appendix A, infra. Obviously, if there are no significant intra-session recesses, there will be no intra-session recess appointments. In 1867 and 1868, Congress for the first time took substantial, nonholiday intra-session breaks, and President Andrew Johnson made dozens of recess appointments. The Federal Court of Claims upheld one of those specific appointments, writing “[w]e have no doubt that a vacancy occurring while the Senate was thus temporarily adjourned” during the “first session of the Fortieth Congress” was “legally filled by appointment of the President alone.” Gould v. United States, 19 Ct. Cl. 593, 595–596 (1884) (emphasis added). Attorney General Evarts also issued three opinions concerning the constitutionality of President Johnson’s appointments, and it apparently did not occur to him that the distinction between intra-session and inter-session recesses was significant. See 12 Op. Atty. Gen. 449 (1868); 12 Op. Atty. Gen. 455 (1868); 12 Op. Atty. Gen. 469 (1868). Similarly, though the 40th Congress impeached President Johnson on charges relating to his appointment power, he was not accused of violating the Constitution by mak-ing intra-session recess appointments. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 409 (2005). In all, between the founding and the Great Depression, Congress took substantial intra-session breaks (other than holiday breaks) in four years: 1867, 1868, 1921, and 1929. Appendix A, infra. And in each of those years the President made intra-session recess appointments. See App. to Brief for Petitioner 1a–11a. Since 1929, and particularly since the end of World War II, Congress has shortened its inter-session breaks as it has taken longer and more frequent intra-session breaks; Presidents have correspondingly made more intra-session recess appointments. Indeed, if we include military appointments, Presidents have made thousands of intra-session recess appointments. Id., at 11a–64a. President Franklin Roosevelt, for example, commissioned Dwight Eisenhower as a permanent Major General during an intra-session recess; President Truman made Dean Acheson Under Secretary of State; and President George H. W. Bush reappointed Alan Greenspan as Chairman of the Federal Reserve Board. Id., at 11a, 12a, 40a. Justice Scalia does not dispute any of these facts. Not surprisingly, the publicly available opinions of Presidential legal advisers that we have found are nearly unanimous in determining that the Clause authorizes these appointments. In 1921, for example, Attorney General Daugherty advised President Harding that he could make intra-session recess appointments. He reasoned: “If the President’s power of appointment is to be defeated because the Senate takes an adjournment to a specified date, the painful and inevitable result will be measurably to prevent the exercise of governmental functions. I can not bring myself to believe that the framers of the Constitution ever intended such a catastrophe to happen.” 33 Op. Atty. Gen. 20, 23. We have found memoranda offering similar advice to President Eisenhower and to every President from Carter to the present. See 36 Opinion of Office of Legal Counsel (Op. OLC) ___, ___ (2012), online at www.justice.gov/olc/opiniondocslpro-forma-sessions-opinion.pdf; 25 Op. OLC 182 (2001); 20 Op. OLC 124, 161 (1996); 16 Op. OLC 15 (1992); 13 Op. OLC 271 (1989); 6 Op. OLC 585, 586 (1982); 3 Op. OLC 314, 316 (1979); 41 Op. Atty. Gen. 463, 466 (1960). We must note one contrary opinion authored by President Theodore Roosevelt’s Attorney General Philander Knox. Knox advised the President that the Clause did not cover a 19–day intra-session Christmas recess. 23 Op. Atty. Gen. 599 (1901). But in doing so he relied heavily upon the use of the word “the,” a linguistic point that we do not find determinative. See supra, at 10. And Knox all but confessed that his interpretation ran contrary to the basic purpose of the Clause. For it would permit the Senate to adjourn for “several months,” to a fixed date, and thereby “seriously curtail the President’s power of making recess appointments.” 23 Op. Atty. Gen., at 603. Moreover, only three days before Knox gave his opinion, the Solicitor of the Treasury came to the opposite conclusion. Reply Brief 7, n. 5. We therefore do not think Knox’s isolated opinion can disturb the consensus advice within the Executive Branch taking the opposite position. What about the Senate? Since Presidents began making intra-session recess appointments, individual Senators have taken differing views about the proper definition of “the recess.” See, e.g., 130 Cong. Rec. 23234 (1984) (resolution introduced by Senator Byrd urging limits on the length of applicable intra-session recesses); Brief for Sen. Mitch McConnell et al. as Amici Curiae 26 (an intra-session adjournment does not count as “the recess”); Brief for Sen. Edward M. Kennedy as Amicus Curiae in Franklin v. United States, O. T. 2004, No. 04–5858, p. 5 (same). But neither the Senate considered as a body nor its committees, despite opportunities to express opposition to the practice of intra-session recess appointments, has done so. Rather, to the extent that the Senate or a Senate committee has expressed a view, that view has favored a functional definition of “recess,” and a functional definition encompasses intra-session recesses. Most notably, in 1905 the Senate Committee on the Judiciary objected strongly to President Theodore Roosevelt’s use of the Clause to make more than 160 recess appointments during a “fictitious” inter-session recess. S. Rep. No. 4389, 58th Cong., 3d Sess., p. 2 (hereinafter 1905 Senate Report). At noon on December 7, 1903, the Senate President pro tempore had “declare[d]” a formal, “extraordinary session” of the Senate “adjourned without day,” and the next formal Senate session began immediately afterwards. 37 Cong. Rec. 544 (1903). President Roosevelt made over 160 recess appointments during the instantaneous inter-session interval. The Judiciary Committee, when stating its strong objection, defined “recess” in functional terms as “the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress . . . ; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments.” 1905 Senate Report, at 2 (emphasisdeleted). That functional definition encompasses intra-session, as well as inter-session, recesses. Justice Scalia is right that the 1905 Report did not specifically address the dis-tinction between inter-session and intra-session recesses. But the animating principle of the Report—that “recess” should be practically construed to mean a time when the Senate is unavailable to participate in the appointments process—is inconsistent with the formalistic approach that Justice Scalia endorses. Similarly, in 1940 the Senate helped to enact a law regulating the payment of recess appointees, and the Comptroller General of the United States has interpreted that law functionally. An earlier 1863 statute had denied pay to individuals appointed to fill up vacancies first arising prior to the beginning of a recess. The Senate Judiciary Committee then believed that those vacancies fell outside the scope of the Clause. See infra, at 30. In 1940, however, the Senate amended the law to permit many of those recess appointees to be paid. Act of July 11, 54Stat. 751. Interpreting the amendments in 1948, the Comptroller General—who, unlike the Attorney General, is an “officer of the Legislative Branch,” Bowsher v. Synar, 478 U. S. 714, 731 (1986) —wrote: “I think it is clear that [the Pay Act amendments’] primary purpose was to relieve ‘recess appointees’ of the burden of serving without compensation during periods when the Senate is not actually sitting and is not available to give its advice and consent in respect to the appointment, irrespective of whether the recess of the Senate is attributable to a final adjournment sine die or to an adjournment to a specified date.” 28 Comp. Gen. 30, 37. We recognize that the Senate cannot easily register opposition as a body to every governmental action that many, perhaps most, Senators oppose. But the Senate has not been silent or passive regarding the meaning of the Clause: A Senate Committee did register opposition to President Theodore Roosevelt’s use of the Clause, and the Senate as a whole has legislated in an effort to discourage certain kinds of recess appointments. And yet we are not aware of any formal action it has taken to call into question the broad and functional definition of “recess” firstset out in the 1905 Senate Report and followed by the Executive Branch since at least 1921. Nor has Justice Scalia identified any. All the while, the President has made countless recess appointments during intra-session recesses. The upshot is that restricting the Clause to inter-session recesses would frustrate its purpose. It would make the President’s recess-appointment power dependent on a formalistic distinction of Senate procedure. Moreover, the President has consistently and frequently interpreted the word “recess” to apply to intra-session recesses, and has acted on that interpretation. The Senate as a body has done nothing to deny the validity of this practice for at least three-quarters of a century. And three-quarters of a century of settled practice is long enough to entitle a practice to “great weight in a proper interpretation” of the constitutional provision. The Pocket Veto Case, 279 U. S., at 689. We are aware of, but we are not persuaded by, three important arguments to the contrary. First, some argue that the Founders would likely have intended the Clause to apply only to inter-session recesses, for they hardly knew any other. See, e.g., Brief for Originalist Scholars as Amici Curiae 27–29. Indeed, from the founding until the Civil War inter-session recesses were the only kind of significant recesses that Congress took. The problem with this argument, however, is that it does not fully describe the relevant founding intent. The question is not: Did the Founders at the time think about intra-session recesses? Perhaps they did not. The question is: Did the Founders intend to restrict the scope of the Clause to the form of congressional recess then prevalent, or did they intend a broader scope permitting the Clause to apply, where appropriate, to somewhat changed circumstances? The Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries. After all, a Constitution is “intended to endure for ages to come,” and must adapt itself to a future that can only be “seen dimly,” if at all. McCulloch, 4 Wheat., at 415. We therefore think the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause’s language. Second, some argue that the intra-session interpretation permits the President to make “illogic[ally]” long recess appointments. Brief for Respondent Noel Canning 13; post, at 10 (Scalia, J., concurring in judgment). A recess appointment made between Congress’ annual sessions would permit the appointee to serve for about a year, i.e., until the “end” of the “next” Senate “session.” Art. II, §2, cl. 3. But an intra-session appointment made at the beginning or in the middle of a formal session could permit the appointee to serve for 1½ or almost 2 years (until the end of the following formal session). We agree that the intra-session interpretation permits somewhat longer recess appointments, but we do not agree that this consequence is “illogical.” A President who makes a recess appointment will often also seek to make a regular appointment, nominating the appointee and securing ordinary Senate confirmation. And the Clause ensures that the President and Senate always have at least a full session to go through the nomination and confirmation process. That process may take several months. See O’Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913, 967 (2009) (from 1987 to 2005 the nomination and confirmation process took an average of 236 days for noncabinet agency heads). A recess appointment that lasts somewhat longer than a year will ensure the President the continued assistance of subordinates that the Clause permits him to obtain while he and the Senate select a regular appointee. An appointment should last until the Senate has “an opportunity to act on the subject,” Story, §1551, at 410, and the Clause embodies a determination that a full session is needed to select and vet a replacement. Third, the Court of Appeals believed that application of the Clause to intra-session recesses would introduce “vagueness” into a Clause that was otherwise clear. 705 F. 3d, at 504. One can find problems of uncertainty, however, either way. In 1867, for example, President Andrew Johnson called a special session of Congress, which took place during a lengthy intra-session recess. Consider the period of time that fell just after the conclusion of that special session. Did that period remain an intra-session recess, or did it become an inter-session recess? Historians disagree about the answer. Compare Hartnett, 26 Cardozo L. Rev., at 408–409, with Brief for Constitutional Law Scholars as Amici Curiae 23–24. Or suppose that Congress adjourns sine die, but it does so conditionally, so that the leadership can call the members back into session when “the public interest shall warrant it.” E.g., 155 Cong. Rec. 33429 (2009); 152 Cong. Rec. 23731–23732 (2006); 150 Cong. Rec. 25925–25926 (2004). If the Senate Majority Leader were to reconvene the Senate, how would we characterize the preceding recess? Is it still inter-session? On the narrower interpretation the label matters; on the broader it does not. The greater interpretive problem is determining how long a recess must be in order to fall within the Clause. Is a break of a week, or a day, or an hour too short to count as a “recess”? The Clause itself does not say. And Justice Scalia claims that this silence itself shows that the Framers intended the Clause to apply only to an inter-session recess. Post, at 12–13. We disagree. For one thing, the most likely reason the Framers did not place a textual floor underneath the word “recess” is that they did not foresee the need for one. They might have expected that the Senate would meet for a single session lasting at most half a year. The Federalist No. 84, at 596 (A. Hamilton). And they might not have anticipated that intra-session recesses would become lengthier and more significant than inter-session ones. The Framers’ lack of clairvoyance on that point is not dispositive. Unlike Justice Scalia, we think it most consistent with our constitutional structure to presume that the Framers would have allowed intra-session recess appointments where there was a long history of such practice. Moreover, the lack of a textual floor raises a problem that plagues both interpretations—Justice Scalia’s and ours. Today a brief inter-session recess is just as possible as a brief intra-session recess. And though Justice Scalia says that the “notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting,” he must immediately concede (in a footnote) that the President “can make recess appointments during any break between sessions, no matter how short.” Post, at 11, 15, n. 4 (emphasis added). Even the Solicitor General, arguing for a broader interpretation, acknowledges that there is a lower limit applicable to both kinds of recess. He argues that the lower limit should be three days by analogy to the Adjournments Clause of the Constitution. Tr. of Oral Arg. 11. That Clause says: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” Art. I, §5, cl. 4. We agree with the Solicitor General that a 3-day recess would be too short. (Under Senate practice, “Sunday is generally not considered a day,” and so is not counted for purposes of the Adjournments Clause. S. Doc. No. 101–28, F. Riddick & A. Frumin, Riddick’s Senate Procedure: Precedents and Practices 1265 (hereinafter Riddick’s).) The Adjournments Clause reflects the fact that a 3-day break is not a significant interruption of legislative business. As the Solicitor General says, it is constitutionally de minimis. Brief for Petitioner 18. A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President’s recess-appointment power. That is not to say that the President may make recess appointments during any recess that is “more than three days.” Art. I, §5, cl. 4. The Recess Appointments Clause seeks to permit the Executive Branch to function smoothly when Congress is unavailable. And though Congress has taken short breaks for almost 200 years, and there have been many thousands of recess appointments in that time, we have not found a single example of a recess ap-pointment made during an intra-session recess that was shorter than 10 days. Nor has the Solicitor General. Reply Brief 23. Indeed, the Office of Legal Counsel once informally advised against making a recess appointment during a 6-day intra-session recess. 3 Op. OLC, at 315–316. The lack of examples suggests that the recess-appointment power is not needed in that context. (The length of a recess is “ordinarily calculated by counting the calendar days running from the day after the recess begins and including the day the recess ends.” 36 Op. OLC, at ___, n. 1 (citation omitted).) There are a few historical examples of recess appointments made during inter-session recesses shorter than 10 days. We have already discussed President Theodore Roosevelt’s appointments during the instantaneous, “fictitious” recess. President Truman also made a recess appointment to the Civil Aeronautics Board during a 3-day inter-session recess. Hogue, Recess Appointments: Fre-quently Asked Questions, at 5–6. President Taft made a few appointments during a 9-day recess following his inauguration, and President Lyndon Johnson made sev-eral appointments during an 8-day recess several weeks after assuming office. Hogue, The Law: Recess Appointments to Article III Courts, 34 Presidential Studies Q. 656, 671 (2004); 106 S. Exec. J. 2 (1964); 40 S. Exec. J. 12 (1909). There may be others of which we are unaware. But when considered against 200 years of settled practice, we regard these few scattered examples as anomalies. We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word “presumptively” to leave open the possibility that some very unusual circumstance—a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response—could demand the exercise of the recess-appointment power during a shorter break. (It should go without saying—except that Justice Scalia compels us to say it—that political opposition in the Senate would not qualify as an unusual circumstance.) In sum, we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, §5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well. IV The second question concerns the scope of the phrase “vacancies that may happen during the recess of the Senate.” Art. II, §2, cl. 3 (emphasis added). All agree that the phrase applies to vacancies that initially occur during a recess. But does it also apply to vacancies that initially occur before a recess and continue to exist during the recess? In our view the phrase applies to both kinds of vacancy. We believe that the Clause’s language, read literally, permits, though it does not naturally favor, our broader interpretation. We concede that the most natural meaning of “happens” as applied to a “vacancy” (at least to a modern ear) is that the vacancy “happens” when it ini-tially occurs. See 1 Johnson 913 (defining “happen” in relevant part as meaning “[t]o fall out; to chance; to come to pass”). But that is not the only possible way to use the word. Thomas Jefferson wrote that the Clause is “certainly susceptible of [two] constructions.” Letter to Wilson Cary Nicholas (Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433 (B. Oberg ed., 2009). It “may mean ‘vacancies that may happen to be’ or ‘may happen to fall’ ” during a recess. Ibid. Jefferson used the phrase in the first sense when he wrote to a job seeker that a particular position was unavailable, but that he (Jefferson) was “happy that another vacancy happens wherein I can . . . avail the public of your integrity & talents,” for “the office of Treasurer of the US. is vacant by the resignation of mr Meredith.” Letter to Thomas Tudor Tucker (Oct. 31, 1801), in 35 id., at 530 (B. Oberg ed. 2008) (emphasis added). See also Laws Passed by the Legislature of Florida, No. 31, An Act to Organize and Regulate the Militia of the Territory of Florida §13, H. R. Exec. Doc. No. 72, 27th Cong., 3d Sess., 22 (1842) (“[W]hen any vacancy shall take place in the office of any lieutenant colonel, it shall be the duty of the colonel of the regiment in which such vacancy may happen to order an election to be held at the several precincts in the battalion in which such vacancy may happen” (emphasis added)). Similarly, when Attorney General William Wirt advised President Monroe to follow the broader interpretation, he wrote that the “expression seems not perfectly clear. It may mean ‘happen to take place:’ that is, ‘to originate,’ ” or it “may mean, also, without violence to the sense, ‘happen to exist.’ ” 1 Op. Atty. Gen. 631, 631–632 (1823). The broader interpretation, he added, is “most accordant with” the Constitution’s “reason and spirit.” Id., at 632. We can still understand this earlier use of “happen” if we think of it used together with another word that, like “vacancy,” can refer to a continuing state, say, a financial crisis. A statute that gives the President authority to act in respect to “any financial crisis that may happen during his term” can easily be interpreted to include crises that arise before, and continue during, that term. Perhaps that is why the Oxford English Dictionary defines “happen” in part as “chance to be,” rather than “chance to occur.” 6 OED 1096 (emphasis added); see also 19 OED 383 (defining “vacancy” as the “condition of an office or post being . . . vacant”). In any event, the linguistic question here is not whether the phrase can be, but whether it must be, read more narrowly. The question is whether the Clause is ambiguous. The Pocket Veto Case, 279 U. S., at 690. And the broader reading, we believe, is at least a permissible reading of a “ ‘doubtful’ ” phrase. Ibid. We consequently go on to consider the Clause’s purpose and historical practice. The Clause’s purpose strongly supports the broader interpretation. That purpose is to permit the President to obtain the assistance of subordinate officers when the Senate, due to its recess, cannot confirm them. Attorney General Wirt clearly described how the narrower interpretation would undermine this purpose: “Put the case of a vacancy occurring in an office, held in a distant part of the country, on the last day of the Senate’s session. Before the vacancy is made known to the President, the Senate rises. The office may be an important one; the vacancy may paralyze a whole line of action in some essential branch of our internal police; the public interests may imperiously demand that it shall be immediately filled. But the vacancy happened to occur during the session of the Senate; and if the President’s power is to be limited to such vacancies only as happen to occur during the recess of the Senate, the vacancy in the case put must continue, however ruinous the consequences may be to the public.” 1 Op. Atty. Gen., at 632. Examples are not difficult to imagine: An ambassadorial post falls vacant too soon before the recess begins for the President to appoint a replacement; the Senate rejects a President’s nominee just before a recess, too late to select another. Wirt explained that the “substantial purpose of the constitution was to keep these offices filled,” and “if the President shall not have the power to fill a vacancy thus circumstanced, . . . the substance of the constitution will be sacrificed to a dubious construction of its letter.” Ibid. Thus the broader construction, encompassing vacancies that initially occur before the beginning of a recess, is the “only construction of the constitution which is compatible with its spirit, reason, and purposes; while, at the same time, it offers no violence to its language.” Id., at 633. We do not agree with Justice Scalia’s suggestion that the Framers would have accepted the catastrophe envisioned by Wirt because Congress can always provide for acting officers, see 5 U. S. C. §3345, and the President can always convene a special session of Congress, see U. S. Const., Art. II, §3. Acting officers may have less authority than Presidential appointments. 6 Op. OLC 119, 121 (1982). Moreover, to rely on acting officers would lessen the President’s ability to staff the Executive Branch with people of his own choosing, and thereby limit the President’s control and political accountability. Cf. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 –498 (2010). Special sessions areburdensome (and would have been especially so at the time of the founding). The point of the Recess Appointments Clause was to avoid reliance on these inadequate expedients. At the same time, we recognize one important purpose-related consideration that argues in the opposite direction. A broad interpretation might permit a President to avoid Senate confirmations as a matter of course. If the Clause gives the President the power to “fill up all vacancies” that occur before, and continue to exist during, the Senate’s recess, a President might not submit any nominations to the Senate. He might simply wait for a recess and then provide all potential nominees with recess appointments. He might thereby routinely avoid the constitutional need to obtain the Senate’s “advice and consent.” Wirt thought considerations of character and politics would prevent Presidents from abusing the Clause in this way. 1 Op. Atty. Gen., at 634. He might have added that such temptations should not often arise. It is often less desirable for a President to make a recess appointment. A recess appointee only serves a limited term. That, combined with the lack of Senate approval, may diminish the recess appointee’s ability, as a practical matter, to get a controversial job done. And even where the President and Senate are at odds over politically sensitive appointments, compromise is normally possible. Indeed, the 1940 Pay Act amendments represent a general compromise, for they foresee payment of salaries to recess appointees where vacancies occur before the recess began but not too long before (namely, within 30 days before). 5 U. S. C. §5503(a)(1); see infra, at 32. Moreover, the Senate, like the President, has institutional “resources,” including political resources, “available to protect and assert its interests.” Goldwater v. Carter, 444 U. S. 996, 1004 (1979) (Rehnquist, J., concurring in judgment). In an unusual instance, where a matter is important enough to the Sen-ate, that body can remain in session, preventing recess appointments by refusing to take a recess. See Part V, infra. In any event, the Executive Branch has adhered to the broader interpretation for two centuries, and Senate confirmation has always remained the norm for officers that require it. While we concede that both interpretations carry with them some risk of undesirable consequences, we believe the narrower interpretation risks undermining constitutionally conferred powers more seriously and more often. It would prevent the President from making any recess appointment that arose before a recess, no matter who the official, no matter how dire the need, no matter how uncontroversial the appointment, and no matter how late in the session the office fell vacant. Overall, like Attorney General Wirt, we believe the broader interpretation more consistent with the Constitution’s “reason and spirit.” 1 Op. Atty. Gen., at 632. Historical practice over the past 200 years strongly favors the broader interpretation. The tradition of applying the Clause to pre-recess vacancies dates at least to President James Madison. There is no undisputed record of Presidents George Washington, John Adams, or Thomas Jefferson making such an appointment, though the Solicitor General believes he has found records showing that Presidents Washington and Jefferson did so. We know that Edmund Randolph, Washington’s Attorney General, favored a narrow reading of the Clause. Randolph believed that the “Spirit of the Constitution favors the participation of the Senate in all appointments,” though he did not address—let alone answer—the powerful purposive and structural arguments subsequently made by Attorney General Wirt. See Edmund Randolph’s Opinion on Recess Appointments (July 7, 1792), in 24 Papers of Thomas Jefferson 166 (J. Catanzariti ed. 1990). President Adams seemed to endorse the broader view of the Clause in writing, though we are not aware of any appointments he made in keeping with that view. See Letter to J. McHenry (Apr. 16, 1799), in 8 Works of John Adams 632–633 (C. Adams ed. 1853). His Attorney General, Charles Lee, later informed Jefferson that, in the Adams administration, “whenever an office became vacant so short a time before Congress rose, as not to give an opportunity of enquiring for a proper character, they let it lie always till recess.” 36 Papers of Thomas Jefferson 433. We know that President Jefferson thought that the broad interpretation was linguistically supportable, though his actual practice is not clear. But the evidence suggests that James Madison—as familiar as anyone with the workings of the Constitutional Convention—appointed Theodore Gaillard to replace a district judge who had left office before a recess began. Hartnett, 26 Cardozo L. Rev., at 400–401. It also appears that in 1815 Madison signed a bill that created two new offices prior to a recess which he then filled later during the recess. See Act of Mar. 3, ch. 95, 3Stat. 235; S. J. 13th Cong., 3d Sess., 689–690 (1815); 3 S. Exec. J. 19 (1828) (for Monday, Jan. 8, 1816). He also made recess appointments to “territorial” United States attorney and marshal positions, both of which had been created when the Senate was in session more than two years before. Act of Feb. 27, 1813, ch. 35, 2Stat. 806; 3 S. Exec. J. 19. Justice Scalia refers to “written evidence of Madison’s own beliefs,” post, at 36, but in fact we have no direct evidence of what President Madison believed. We only know that he declined to make one appointment to a pre-recess vacancy after his Secretary of War advised him that he lacked the power. On the other hand, he did apparently make at least five other appointments to pre-recess vacancies, as Justice Scalia does not dispute. The next President, James Monroe, received and presumably acted upon Attorney General Wirt’s advice, namely that “all vacancies which, from any casualty, happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President.” 1 Op. Atty. Gen., at 633. Nearly every subsequent Attorney General to consider the question throughout the Nation’s history has thought the same. E.g., 2 Op. Atty. Gen. 525, 528 (1832); 7 Op. Atty. Gen. 186, 223 (1855); 10 Op. Atty. Gen. 356, 356–357 (1862); 12 Op. Atty. Gen. 32, 33 (1866); 12 Op. Atty. Gen., at 452; 14 Op. Atty. Gen. 562, 564 (1875); 15 Op. Atty. Gen. 207 (1877); 16 Op. Atty. Gen. 522, 524 (1880); 17 Op. Atty. Gen. 521 (1883); 18 Op. Atty. Gen. 29, 29–30 (1884); 19 Op. Atty. Gen. 261, 262 (1889); 26 Op. Atty. Gen. 234, 234–235 (1907); 30 Op. Atty. Gen. 314, 315 (1914); 41 Op. Atty. Gen. 463, 465 (1960); 3 Op. OLC 314 (1979); 6 Op. OLC 585, 586 (1982); 20 Op. OLC 124, 161 (1996); 36 Op. OLC ___ (2012). Indeed, as early as 1862, Attorney General Bates advised President Lincoln that his power to fill pre-recess vacancies was “settled . . . as far . . . as a constitutional question can be settled,” 10 Op. Atty. Gen., at 356, and a century later Acting Attorney General Walsh gave President Eisenhower the same advice “without any doubt,” 41 Op. Atty. Gen., at 466. This power is important. The Congressional Research Service is “unaware of any official source of information tracking the dates of vacancies in federal offices.” The Noel Canning Decision 3, n. 6. Nonetheless, we have enough information to believe that the Presidents since Madison have made many recess appointments filling vacancies that initially occurred prior to a recess. As we have just said, nearly every 19th- and 20th-century Attorney General expressing a view on the matter has agreed with William Wirt, and Presidents tend to follow the legal advice of their chief legal officers. Moreover, the Solicitor General has compiled a list of 102 (mostly uncontested) recess appointments made by Presidents going back to the founding. App. to Brief for Petitioner 65a–89a. Given the difficulty of finding accurate information about vacancy dates, that list is undoubtedly far smaller than the actual number. No one disputes that every President since James Buchanan has made recess appointments to pre-existing vacancies. Common sense also suggests that many recess appointees filled vacancies that arose before the recess began. We have compared the list of intra-session recess appointments in the Solicitor General’s brief with the chart of congressional recesses. Where a specific date of appointment can be ascertained, more than half of those intra-session appointments were made within two weeks of the beginning of a recess. That short window strongly suggests that many of the vacancies initially arose prior to the recess. See App. to Brief for Petitioner 1a–64a; Appendix A, infra. Thus, it is not surprising that the Congressional Research Service, after examining the vacancy dates associated with a random sample of 24 inter-session recess appointments since 1981, concluded that “[i]n most of the 24 cases, the preponderance of evidence indicated that the vacancy arose prior to the recess during which the appointment was made.” The Noel Canning Decision 3. Further, with research assistance from the Supreme Court Library, we have examined a random sample of the recess appointments made by our two most recent Presidents, and have found that almost all of those appointments filled pre-recess vacancies: Of a sample of 21 recess appointments, 18 filled pre-recess vacancies and only 1 filled a vacancy that arose during the recess in which he was appointed. The precise date on which 2 of the vacancies arose could not be determined. See Appendix B, infra. Taken together, we think it is a fair inference that a large proportion of the recess appointments in the history of the Nation have filled pre-existing vacancies. Did the Senate object? Early on, there was some sporadic disagreement with the broad interpretation. In 1814 Senator Gore said that if “the vacancy happen at another time, it is not the case described by the Constitution.” 26 Annals of Cong. 653. In 1822 a Senate committee, while focusing on the President’s power to fill a new vacancy created by statute, used language to the same effect. 38 id., at 489, 500. And early Congresses enacted statutes authorizing certain recess appointments, see post, at 31, a fact that may or may not suggest they accepted the narrower interpretation of the Clause. Most of those statutes—including the one passed by the First Congress—authorized appointments to newly created offices, and may have been addressed to the separate question of whether new offices are vacancies within the meaning of the Clause. See Letter from Alexander Hamilton to James McHenry (May 3, 1799), in 23 Papers of Alexander Hamilton 94 (H. Syrett ed. 1976) (“Vacancy is a relative term, and presupposes that the Office has been once filled”); Reply Brief 17. In any event, by 1862 Attorney General Bates could still refer to “the unbroken acquiescence of the Senate” in support of the broad interpretation. 10 Op. Atty. Gen., at 356. Then in 1863 the Senate Judiciary Committee disagreed with the broad interpretation. It issued a report concluding that a vacancy “must have its inceptive point after one session has closed and before another session has begun.” S. Rep. No. 80, 37th Cong., 3d Sess., p. 3. And the Senate then passed the Pay Act, which provided that “no money shall be paid . . . as a salary, to any person appointed during the recess of the Senate, to fill a vacancy . . . which . . . existed while the Senate was in session.” Act of Feb. 9, 1863, §2, 12Stat. 646. Relying upon the floor statement of a single Senator, Justice Scalia suggests that the passage of the Pay Act indicates that the Senate as a whole endorsed the position in the 1863 Report. But the circumstances are more equivocal. During the floor debate on the bill, not a single Senator referred to the Report. Cong. Globe, 37th Cong., 3d Sess. 564–565 (1863). Indeed, Senator Trumbull, who introduced the Pay Act, acknowledged that there was disagreement about the underlying constitutional question. Id., at 565 (“[S]ome other persons think he has that power”). Further, if a majority of the Senate had believed appointments to pre-recess vacancies were unconstitutional, it could have attempted to do far more than temporarily dock the appointees’ pay. Cf. Tenure of Office Act of 1867, §5, 14Stat. 431 (making it a federal crime for “any person” to “accept any appointment” in certain circumstances). In any event, the Senate subsequently abandoned its hostility. In the debate preceding the 1905 Senate Report regarding President Roosevelt’s “constructive” recess appointments, Senator Tillman—who chaired the Committee that authored the 1905 Report—brought up the 1863 Report, and another Senator responded: “Whatever that report may have said in 1863, I do not think that has been the view the Senate has taken” of the issue. 38 Cong. Rec. 1606 (1904). Senator Tillman then agreed that “the Senate has acquiesced” in the President’s “power to fill” pre-recess vacancies. Ibid. And Senator Tillman’s 1905 Report described the Clause’s purpose in terms closely echoing Attorney General Wirt. 1905 Senate Report, at 2 (“Its sole purpose was to render it certain that at all times there should be, whether the Senate was in session or not, an officer for every office” (emphasis added)). In 1916 the Senate debated whether to pay a recess appointee who had filled a pre-recess vacancy and had not subsequently been confirmed. Both Senators to address the question—one on each side of the payment debate—agreed that the President had the constitutional power to make the appointment, and the Senate voted to pay the appointee for his service. 53 Cong. Rec. 4291–4299; 39Stat. 818–819. In 1927 the Comptroller General, a legislative officer, wrote that “there is no question but that the President has authority to make a recess appointment to fill any vacancy,” including those that “existed while the Senate was in session.” 7 Comp. Gen. 10, 11 (emphasis added). Meanwhile, Presidents continued to make appointments to pre-recess vacancies. The Solicitor General has identified 40 between 1863 and 1940, but that number is clearly not comprehensive. See, e.g., 32 Op. Atty. Gen. 271–272 (1920) (listing 5 appointments that are not in the Solicitor General’s appendix); Recess Appointments, Washington Post, July 7, 1880, p. 1 (noting that President Hayes had made “quite a number of appointments” to pre-recess vacancies). Then in 1940 Congress amended the Pay Act to authorize salary payments (with some exceptions) where (1) the “vacancy arose within thirty days prior to the termination of the session,” (2) “at the termination of the session” a nomination was “pending,” or (3) a nominee was “rejected by the Senate within thirty days prior to the termination of the session.” Act of July 11, 54Stat. 751 (codified, as amended, at 5 U. S. C. §5503). All three circumstances concern a vacancy that did not initially occur during a recess but happened to exist during that recess. By paying salaries to this kind of recess appointee, the 1940 Senate (and later Senates) in effect supported the President’s interpretation of the Clause. The upshot is that the President has consistently and frequently interpreted the Recess Appointments Clause to apply to vacancies that initially occur before, but continue to exist during, a recess of the Senate. The Senate as a body has not countered this practice for nearly three-quarters of a century, perhaps longer. See A. Amar, The Unwritten Constitution 576–577, n. 16 (2012) (for nearly 200 years “the overwhelming mass of actual practice” supports the President’s interpretation); Mistretta v. United States, 488 U. S. 361, 401 (1989) (a “200–year tradition” can “ ‘give meaning’ to the Constitution” (quot-ing Youngstown, 343 U. S., at 610 (Frankfurter, J., concurring))). The tradition is long enough to entitle the practice “to great regard in determining the true construction” of the constitutional provision. The Pocket Veto Case, 279 U. S., at 690. And we are reluctant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long. In light of some linguistic ambiguity, the basic purpose of the Clause, and the historical practice we have described, we conclude that the phrase “all vacancies” includes vacancies that come into existence while the Senate is in session. V The third question concerns the calculation of the length of the Senate’s “recess.” On December 17, 2011, the Senate by unanimous consent adopted a resolution to convene “pro forma session[s]” only, with “no business . . . transacted,” on every Tuesday and Friday from December 20, 2011, through January 20, 2012. 2011 S. J. 923. At the end of each pro forma session, the Senate would “adjourn until” the following pro forma session. Ibid. During that period, the Senate convened and adjourned as agreed. It held pro forma sessions on December 20, 23, 27, and 30, and on January 3, 6, 10, 13, 17, and 20; and at the end of each pro forma session, it adjourned until the time and date of the next. Id., at 923–924; 158 Cong. Rec. S1–S11. The President made the recess appointments before us on January 4, 2012, in between the January 3 and the January 6 pro forma sessions. We must determine the significance of these sessions—that is, whether, for purposes of the Clause, we should treat them as periods when the Senate was in session or as periods when it was in recess. If the former, the period between January 3 and January 6 was a 3-day recess, which is too short to trigger the President’s recess-appointment power, see supra, at 19–21. If the latter, however, then the 3-day period was part of a much longer recess during which the President did have the power to make recess appointments, see ibid. The Solicitor General argues that we must treat the pro forma sessions as periods of recess. He says that these “sessions” were sessions in name only because the Senate was in recess as a functional matter. The Senate, he contends, remained in a single, unbroken recess from January 3, when the second session of the 112th Congress began by operation of the Twentieth Amendment, until January 23, when the Senate reconvened to do regular business. In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here. The standard we apply is consistent with the Constitution’s broad delegation of authority to the Senate to determine how and when to conduct its business. The Constitution explicitly empowers the Senate to “determine the Rules of its Proceedings.” Art. I, §5, cl. 2. And we have held that “all matters of method are open to the determination” of the Senate, as long as there is “a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained” and the rule does not “ignore constitutional restraints or violate fundamental rights.” United States v. Ballin, 144 U. S. 1, 5 (1892) . In addition, the Constitution provides the Senate with extensive control over its schedule. There are only limited exceptions. See Amdt. 20, §2 (Congress must meet once a year on January 3, unless it specifies another day by law); Art. II, §3 (Senate must meet if the President calls it into special session); Art. I, §5, cl. 4 (neither House may adjourn for more than three days without consent of the other). See also Art. II, §3 (“[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper”). The Constitution thus gives the Senate wide latitude to determine whether and when to have a session, as well as how to conduct the session. This suggests that the Senate’s determination about what constitutes a session should merit greatrespect. Furthermore, this Court’s precedents reflect the breadth of the power constitutionally delegated to the Senate. We generally take at face value the Senate’s own report of its actions. When, for example, “the presiding officers” of the House and Senate sign an enrolled bill (and the President “approve[s]” it), “its authentication as a bill that has passed Congress should be deemed complete and unimpeachable.” Marshall Field & Co. v. Clark, 143 U. S. 649, 672 (1892) . By the same principle, when the Journal of the Senate indicates that a quorum was present, under a valid Senate rule, at the time the Senate passed a bill, we will not consider an argument that a quorum was not, in fact, present. Ballin, supra, at 9. The Constitution requires the Senate to keep its Journal, Art. I, §5, cl. 3 (“Each House shall keep a Journal of its proceedings . . .”), and “if reference may be had to” it, “it must be assumed to speak the truth,” Ballin, supra, at 4. For these reasons, we conclude that we must give great weight to the Senate’s own determination of when it is and when it is not in session. But our deference to the Senate cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares. See Tr. of Oral Arg. 69 (acknowledgment by counsel for amici Senators that if the Senate had left the Capitol and “effectively given up . . . the business of legislating” then it might be in recess, even if it said it was not). In that circumstance, the Senate is not simply unlikely or unwilling to act upon nominations of the President. It is unable to do so. The purpose of the Clause is to ensure the continued functioning of the Federal Government while the Senate is unavailable. See supra, at 5–6. This purpose would count for little were we to treat the Senate as though it were in session even when it lacks the ability to provide its “advice and consent.” Art. II, §2, cl. 2. Accordingly, we conclude that when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the Clause. Applying this standard, we find that the pro forma sessions were sessions for purposes of the Clause. First, the Senate said it was in session. The Journal of the Senate and the Congressional Record indicate that the Senate convened for a series of twice-weekly “sessions” from December 20 through January 20. 2011 S. J. 923–924; 158 Cong. Rec. S1–S11. (The Journal of the Senate for 2012 has not yet been published.) And these reports of the Senate “must be assumed to speak the truth.” Ballin, supra, at 4. Second, the Senate’s rules make clear that during its pro forma sessions, despite its resolution that it would conduct no business, the Senate retained the power to conduct business. During any pro forma session, the Senate could have conducted business simply by passing a unanimous consent agreement. See Riddick’s 1313. The Senate in fact conducts much of its business through unanimous consent. Id., at 1311–1312. Senate rules presume that a quorum is present unless a present Senator questions it. Id., at 1041–1042. And when the Senate has a quorum, an agreement is unanimously passed if, upon its proposal, no present Senator objects. Id., at 1329–1330. It is consequently unsurprising that the Senate has enacted legislation during pro forma sessions even when it has said that no business will be transacted. Indeed, the Senate passed a bill by unanimous consent during the second pro forma session after its December 17 adjournment. 2011 S. J. 924. And that bill quickly became law. Pub. L. 112–78, 125Stat. 1280. By way of contrast, we do not see how the Senate could conduct business during a recess. It could terminate the recess and then, when in session, pass a bill. But in that case, of course, the Senate would no longer be in recess. It would be in session. And that is the crucial point. Senate rules make clear that, once in session, the Senate can act even if it has earlier said that it would not. The Solicitor General argues that more is required. He contends that what counts is not the Senate’s capacity to conduct business but what the Senate actually does (or here, did) during its pro forma sessions. And he looks for support to the functional definition of “recess” set forth in the 1905 Senate Report discussed above. See supra, at 14. That Report describes a “recess” of the Senate as “the period of time . . . when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments.” 1905 Senate Report, at 2. Even were we, for argument’s sake, to accept all of these criteria as authoritative, they would here be met. Taking the last criterion first, could the Senate, during its pro forma sessions, “participate as a body in making appointments”? It could. It could confirm nominees by unanimous consent, just as it passed the bill mentioned above. See Riddick’s 1313. Could the Senate “receive communications from the President”? It could. The Congressional Record indicates that the Senate “received” a message from the President on January 12, during a 3-day adjournment between two pro forma sessions. See 158 Cong. Rec. S37 (Jan. 23, 2012). If the Senate could receive Presidential messages between two pro forma sessions, it could receive them during a pro forma session. Was the Senate’s Chamber “empty”? It was not. By its official rules, the Senate operates under the presumption that a quorum is present until a present Senator suggests the absence of a quorum, Riddick’s 1041–1042, and nothing in the Journal of the Senate or the Congressional Record reflects any such suggestion. Did Senators “owe [a] duty of attendance”? They did. The Senate’s rules dictate that Senators are under a duty to attend every session. See Riddick’s 214; Standing Rule of the Senate VI(2), S. Doc. No. 112–1, p. 5 (2011) (“No Senator shall absent himself from the service of the Senate without leave”). Nothing excused the Senators from this duty during the Senate’s pro forma sessions. If any present Senator had raised a question as to the presence of a quorum, and by roll call it had become clear that a quorum was missing, the Senators in attendance could have directed the Sergeant at Arms to bring in the missing Senators. Rule VI(4). The Solicitor General asks us to engage in a more realistic appraisal of what the Senate actually did. He argues that, during the relevant pro forma sessions, business was not in fact conducted; messages from the President could not be received in any meaningful way because they could not be placed before the Senate; the Senate Chamber was, according to C-SPAN coverage, almost empty; and in practice attendance was not required. See Brief for Petitioner 48–49, 54–55. We do not believe, however, that engaging in the kind of factual appraisal that the Solicitor General suggests is either legally or practically appropriate. From a legal perspective, this approach would run contrary to prece-dent instructing us to “respect . . . coequal and independent departments” by, for example, taking the Senate’s report of its official action at its word. Field, 143 U. S., at 672; see Ballin, 144 U. S., at 4. From a practical perspective, judges cannot easily determine such matters as who is, and who is not, in fact present on the floor during a particular Senate session. Judicial efforts to engage in these kinds of inquiries would risk undue judicial interference with the functioning of the Legislative Branch. Finally, the Solicitor General warns that our holding may “ ‘disrup[t] the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.’ ” Brief for Petitioner 64 (quoting Morrison v. Olson, 487 U. S. 654, 695 (1988) ; alteration in original). We do not see, however, how our holding could significantly alter the constitutional balance. Most appointments are not controversial and do not produce friction between the branches. Where political controversy is serious, the Senate unquestionably has other methods of preventing recess appointments. As the Solicitor General concedes, the Senate could preclude the President from making recess appointments by holding a series of twice-a-week ordinary (not pro forma) sessions. And the nature of the business conducted at those ordinary sessions—whether, for example, Senators must vote on nominations, or may return totheir home States to meet with their constituents—is a matter for the Senate to decide. The Constitution also gives the President (if he has enough allies in Congress) a way to force a recess. Art. II, §3 (“[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper”). Moreover, the President and Senators engage with each other in many different ways and have a variety of methods of encouraging each other to accept their points of view. Regardless, the Recess Appointments Clause is not designed to overcome serious institutional friction. It simply provides a subsidiary method for appointing officials when the Senate is away during a recess. Here, as in other contexts, friction between the branches is an inevitable consequence of our constitutional structure. See Myers, 272 U. S., at 293 (Brandeis, J., dissenting). That structure foresees resolution not only through judicial interpretation and compromise among the branches but also by the ballot box. VI The Recess Appointments Clause responds to a structural difference between the Executive and Legislative Branches: The Executive Branch is perpetually in operation, while the Legislature only acts in intervals separated by recesses. The purpose of the Clause is to allow the Executive to continue operating while the Senate is unavailable. We believe that the Clause’s text, standing alone, is ambiguous. It does not resolve whether the President may make appointments during intra-session recesses, or whether he may fill pre-recess vacancies. But the broader reading better serves the Clause’s structural function. Moreover, that broader reading is reinforced by centuries of history, which we are hesitant to disturb. We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length. Justice Scalia would render illegitimate thousands of recess appointments reaching all the way back to the founding era. More than that: Calling the Clause an “anachronism,” he would basically read it out of the Constitution. Post, at 12. He performs this act of judicial excision in the name of liberty. We fail to see how excising the Recess Appointments Clause preserves freedom. In fact, Alexander Hamilton observed in the very first Feder-alist Paper that “the vigour of government is essential to the security of liberty.” The Federalist No. 1, at 5. And the Framers included the Recess Appointments Clause to preserve the “vigour of government” at times when an important organ of Government, the United States Senate, is in recess. Justice Scalia’s interpretation of the Clause would defeat the power of the Clause to achieve that objective. The foregoing discussion should refute Justice Scalia’s claim that we have “embrace[d]” an “adverse-possession theory of executive power.” Post, at 48. Instead, as inall cases, we interpret the Constitution in light of itstext, purposes, and “our whole experience” as a Nation. Missouri v. Holland, 252 U. S. 416, 433 (1920) . And we look to the actual practice of Government to inform our interpretation. Given our answer to the last question before us, we conclude that the Recess Appointments Clause does not give the President the constitutional authority to make the appointments here at issue. Because the Court of Appeals reached the same ultimate conclusion (though for reasons we reject), its judgment is affirmed. It is so ordered. APPENDIXES A The following table contains the dates of all the intra-session and inter-session recesses that Congress has taken since the founding. The information (including the footnotes) is taken from 2011–2012 Official Congressional Directory, 112th Cong., 522–539. SESSIONS OF CONGRESS, 1st–112th CONGRESSES, 1789–2011 1 For the purposes of this table, a session’s ‘‘length in days’’ is defined as the total number of calendar days from the convening date to the adjournment date, inclusive. It does not mean the actual number of days that Congress met during that session. 2 For the purposes of this table, a ‘‘recess’’ is defined as a break in House or Senate proceedings of three or more days, excluding Sundays. According to Article I, section 5 of the U. S. Constitution, neither house may adjourn for more than three days without the consent of the other. On occasion, both chambers have held one or more pro forma sessions because of this constitutional obligation or for other purposes. Treated here as recesses, usually no business is conducted during these time periods. On this table, beginning in the 1990s, such pro forma sessions are indicated with a P. B The following table shows the proportion of recent appointments that have filled pre-recess vacancies. It was compiled with research assistance from the Supreme Court Library. It contains a random sample of the recess appointments by President George W. Bush and President Barack Obama. The last column indicates whether the vacancy arose during the recess in which it was filled. “A” indicates a vacancy that arose during the recess, “P” indicates a vacancy that arose before the recess, and “U” indicates that the vacancy date could not be ascertained.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus NATIONAL LABOR RELATIONS BOARD v. NOEL CANNING et al. certiorari to the united states court of appeals for the district of columbia circuit No. 12–1281. Argued January 13, 2014—Decided June 26, 2014 Respondent Noel Canning, a Pepsi-Cola distributor, asked the D. C. Circuit to set aside an order of the National Labor Relations Board, claiming that the Board lacked a quorum because three of the five Board members had been invalidly appointed. The nominations of the three members in question were pending in the Senate when it passed a December 17, 2011, resolution providing for a series of “pro forma session[s],” with “no business . . . transacted,” every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923. Invoking the Recess Appointments Clause—which gives the President the power “to fill up all Vacancies that may happen during the Recess of the Senate,” Art. II, §2, cl. 3—the President appointed the three members in question between the January 3 and January 6 pro forma sessions. Noel Canning argued primarily that the appointments were invalid because the 3-day adjournment between those two sessions was not long enough to trigger the Recess Appointments Clause. The D. C. Circuit agreed that the appointments fell outside the scope of the Clause, but on different grounds. It held that the phrase “the recess,” as used in the Clause, does not include intra-session recesses, and that the phrase “vacancies that may happen during the recess” applies only to vacancies that first come into existence during a recess. Held: 1. The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length. . (a) Two background considerations are relevant to the questions here. First, the Recess Appointments Clause is a subsidiary method for appointing officers of the United States. The Founders intended the norm to be the method of appointment in Article II, §2, cl. 2, which requires Senate approval of Presidential nominations, at least for principal officers. The Recess Appointments Clause reflects the tension between the President’s continuous need for “the assistance of subordinates,” Myers v. United States, 272 U.S. 52, 117, and the Senate’s early practice of meeting for a single brief session each year. The Clause should be interpreted as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confirmation. Second, in interpreting the Clause, the Court puts significant weight upon historical practice. The longstanding “practice of the government,” McCulloch v. Maryland, 4 Wheat. 316, 401, can inform this Court’s determination of “what the law is” in a separation-of-powers case, Marbury v. Madison, 1 Cranch 137, 176. See also, e.g., Mistretta v. United States, 488 U.S. 361, 401; The Pocket Veto Case, 279 U.S. 655, 689–690. There is a great deal of history to consider here, for Presidents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President have recognized that such appointments can be both necessary and appropriate in certain circumstances. The Court, in interpreting the Clause for the first time, must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached. . (b) The phrase “the recess of the Senate” applies to both inter-session recess (i.e., breaks between formal sessions of the Senate) and intra-session recesses (i.e., breaks in the midst of a formal session) of substantial length. The constitutional text is ambiguous. Founding-era dictionaries and usages show that the phrase “the recess” can encompass intra-session breaks. And this broader interpretation is demanded by the purpose of the Clause, which is to allow the President to make appointments so as to ensure the continued functioning of the Government while the Senate is away. The Senate is equally away and unavailable to participate in the appointments process during both an inter-session and an intra-session recess. History offers further support for this interpretation. From the founding until the Great Depression, every time the Senate took a substantial, non-holiday intra-session recess, the President made recess appointments. President Andrew Johnson made the first documented intra-session recess appointments in 1867 and 1868, and Presidents made similar appointments in 1921 and 1929. Since 1929, and particularly since the end of World War II, Congress has shortened its inter-session breaks and taken longer and more frequent intra-session breaks; Presidents accordingly have made more intra-session recess appointments. Meanwhile, the Senate has never taken any formal action to deny the validity of intra-session recess appointments. In 1905, the Senate Judiciary Committee defined “the recess” as “the period of time when the Senate” is absent and cannot “participate as a body in making appointments,” S. Rep. No. 4389, 58th Cong., 3d Sess., p. 2, and that functional definition encompasses both intra-session and inter-session recesses. A 1940 law regulating the payment of recess appointees has also been interpreted functionally by the Comptroller General (an officer of the Legislative Branch). In sum, Presidents have made intra-session recess appointments for a century and a half, and the Senate has never taken formal action to oppose them. That practice is long enough to entitle it to “great weight in a proper interpretation” of the constitutional provision. The Pocket Veto Case, supra, at 689. The Clause does not say how long a recess must be in order to fall within the Clause, but even the Solicitor General concedes that a 3-day recess would be too short. The Adjournments Clause, Art. I, §5, cl. 4, reflects the fact that a 3-day break is not a significant interruption of legislative business. A Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President’s recess-appointment power. Moreover, the Court has not found a single example of a recess appointment made during an intra-session recess that was shorter than 10 days. There are a few examples of inter-session recess appointments made during recesses of less than 10 days, but these are anomalies. In light of historical practice, a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. The word “presumptively” leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break. . (c) The phrase “vacancies that may happen during the recess of the Senate,” Art. II, §2, cl. 3, applies both to vacancies that first come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess. Again, the text is ambiguous. As Thomas Jefferson observed, the Clause is “certainly susceptible of [two] constructions.” Letter to Wilson Cary Nicholas (Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433. It “may mean ‘vacancies that may happen to be’ or ‘may happen to fall’ ” during a recess. Ibid. And, as Attorney General Wirt wrote in 1821, the broader reading is more consonant with the “reason and spirit” of the Clause. 1 Op. Atty. Gen. 632. The purpose of the Clause is to permit the President, who is always acting to execute the law, to obtain the assistance of subordinate officers while the Senate, which acts only in intervals, is unavailable to confirm them. If a vacancy arises too late in the session for the President and Senate to have an opportunity to select a replacement, the narrower reading could paralyze important functions of the Federal Government, particularly at the time of the founding. The broader interpretation ensures that offices needing to be filled can be filled. It does raise a danger that the President may attempt to use the recess-appointment power to circumvent the Senate’s advice and consent role. But the narrower interpretation risks undermining constitutionally conferred powers more seriously and more often. It would prevent a President from making any recess appointment to fill a vacancy that arose before a recess, no matter who the official, how dire the need, how uncontroversial the appointment, and how late in the session the office fell vacant. Historical practice also strongly favors the broader interpretation. The tradition of applying the Clause to pre-recess vacancies dates at least to President Madison. Nearly every Attorney General to consider the question has approved the practice, and every President since James Buchanan has made recess appointments to pre-existing vacancies. It is a fair inference from the historical data that a large proportion of recess appointments over our Nation’s history have filled pre-recess vacancies. The Senate Judiciary Committee in 1863 did issue a report disagreeing with the broader interpretation, and Congress passed a law known as the Pay Act prohibiting payment of recess appointments to pre-recess vacancies soon after. However, the Senate subsequently abandoned its hostility. In 1940, the Senate amended the Pay Act to permit payment of recess appointees in circumstances that would be unconstitutional under the narrower interpretation. In short, Presidents have made recess appointments to preexisting vacancies for two centuries, and the Senate as a body has not countered this practice for nearly three-quarters of a century, perhaps longer. The Court is reluctant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long. . 2. For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business. This standard is consistent with the Constitution’s broad delegation of authority to the Senate to determine how and when to conduct its business, as recognized by this Court’s precedents. See Art. I, §5, cl. 2; Marshall Field & Co. v. Clark, 143 U.S. 649, 672; United States v. Ballin, 144 U.S. 1, 5, 9. Although the Senate’s own determination of when it is and is not in session should be given great weight, the Court’s deference cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares. Under the standard set forth here, the Senate was in session during the pro forma sessions at issue. It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business. The Senate could have conducted business simply by passing a unanimous consent agreement. In fact, it did so; it passed a bill by unanimous consent during its pro forma session on December 23, 2011. See 2011 S. J. 924; Pub. L. 112–78. The Court will not, as the Solicitor General urges, engage in an in-depth factual appraisal of what the Senate actually did during its pro forma sessions in order to determine whether it was in recess or in session for purposes of the Recess Appointments Clause. Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments. . 705 F.3d 490, affirmed. Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Roberts, C. J., and Thomas and Alito, JJ., joined.

The Recess Appointments Clause of Art. II, §2, cl. 2, gives the President alone the power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. The Clause applies to both intra-session recesses and periods of recess. For purposes of the Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. Since the second session of the 112th Congress began on January 3, 2012, the day before the President's appointments, those appointments occurred during an intra- session recess, and the appointments consequently fell outside the Clause. . (a) The Clause does not apply only to recesses that occur within a formal session of Congress, i.e., intra-Session recesses. Rather, the Clause applies only to vacancies that come into existence during a recess, such as a summer recess in the midst of a session. Here, the President made recess appointments here at issue on January 4, 2012. At that time the Senate was in recess pursuant to a December 17, 2011, resolution providing for a series of brief recesses punctuated by pro forma sessions, with no business transacted. Three days is too short a time to bring a recess within the Clause's scope. Thus, the appointments were invalid. Because the Senate lacked a quorum of validly appointed members when it issued its order, the order was invalid. (b) The conclusion that the Clause is ambiguous as to whether or not the phrase of the phrase covers inter-session recesses, and whether it must be read more narrowly, is not mooted by the fact that the Senate now unquestionably has the requisite quorum. Pp. 468 U.S. 469-443. 795 F. 3d 490, reversed. THE CHIEF JUSTICE, in an opinion with respect to this case, concurred in the judgment of the Court of Appeals..

2013_13-369

https://www.oyez.org/cases/2013/13-369

. The Patent Act requires that a patent specification “conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as [the] invention.” 35 U. S. C. §112, ¶2 (2006 ed.) (emphasis added). This case, involving a heart-rate monitor used with exercise equipment, concerns the proper reading of the statute’s clarity and precision demand. According to the Federal Circuit, a patent claim passes the §112, ¶2 threshold so long as the claim is “amenable to construction,” and the claim, as construed, is not “insolubly ambiguous.” 715 F. 3d 891, 898–899 (2013). We conclude that the Federal Circuit’s formulation, which tolerates some ambiguous claims but not others, does not satisfy the statute’s definiteness requirement. In place of the “insolubly ambiguous” standard, we hold that a patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention. Expressing no opinion on the validity of the patent-in-suit, we remand, instructing the Federal Circuit to decide the case employing the standard we have prescribed. I Authorized by the Constitution “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries,” Art. I, §8, cl. 8, Congress has enacted patent laws rewarding inventors with a limited monopoly. “Th[at] monopoly is a property right,” and “like any property right, its boundaries should be clear.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U. S. 722, 730 (2002) . See also Markman v. Westview Instruments, Inc., 517 U. S. 370, 373 (1996) (“It has long been understood that a patent must describe the exact scope of an invention and its manufacture . . . .”). Thus, when Congress enacted the first Patent Act in 1790, it directed that patent grantees file a written specification “containing a description . . . of the thing or things . . . invented or discovered,” which “shall be so particular” as to “distinguish the invention or discovery from other things before known and used.” Act of Apr. 10, 1790, §2, 1Stat. 110. The patent laws have retained this requirement of definiteness even as the focus of patent construction has shifted. Under early patent practice in the United States, we have recounted, it was the written specification that “represented the key to the patent.” Markman, 517 U. S., at 379. Eventually, however, patent applicants began to set out the invention’s scope in a separate section known as the “claim.” See generally 1 R. Moy, Walker on Patents §4.2, pp. 4–17 to 4–20 (4th ed. 2012). The Patent Act of 1870 expressly conditioned the receipt of a patent on the inventor’s inclusion of one or more such claims, described with particularity and distinctness. See Act of July 8, 1870, §26, 16Stat. 201 (to obtain a patent, the inventor must “particularly point out and distinctly claim the part, improvement, or combination which [the inventor] claims as his invention or discovery”). The 1870 Act’s definiteness requirement survives today, largely unaltered. Section 112 of the Patent Act of 1952, applicable to this case, requires the patent applicant to conclude the specification with “one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.” 35 U. S. C. §112, ¶2 (2006 ed.). A lack of definiteness renders invalid “the patent or any claim in suit.” §282, ¶2(3).[1] II A The patent in dispute, U. S. Patent No. 5,337,753 (’753 patent), issued to Dr. Gregory Lekhtman in 1994 and assigned to respondent Biosig Instruments, Inc., concerns a heart-rate monitor for use during exercise. Previous heart-rate monitors, the patent asserts, were often inaccurate in measuring the electrical signals accompanying each heartbeat (electrocardiograph or ECG signals). The inaccuracy was caused by electrical signals of a different sort, known as electromyogram or EMG signals, generated by an exerciser’s skeletal muscles when, for example, she moves her arm, or grips an exercise monitor with her hand. These EMG signals can “mask” ECG signals and thereby impede their detection. App. 52, 147. Dr. Lekhtman’s invention claims to improve on prior art by eliminating that impediment. The invention focuses on a key difference between EMG and ECG waveforms: while ECG signals detected from a user’s left hand have a polarity opposite to that of the signals detected from her right hand,[2] EMG signals from each hand have the same polar-ity. The patented device works by measuring equalized EMG signals detected at each hand and then using circuitry to subtract the identical EMG signals from each other, thus filtering out the EMG interference. As relevant here, the ’753 patent describes a heart-rate monitor contained in a hollow cylindrical bar that a user grips with both hands, such that each hand comes into contact with two electrodes, one “live” and one “common.” The device is illustrated in figure 1 of the patent, id., at 41, reproduced in the Appendix to this opinion. Claim 1 of the ’753 patent, which contains the limitations critical to this dispute, refers to a “heart rate monitor for use by a user in association with exercise apparatus and/or exercise procedures.” Id., at 61. The claim “comprise[s],” among other elements, an “elongate member” (cylindrical bar) with a display device; “electronic circuitry including a difference amplifier”; and, on each half of the cylindrical bar, a live electrode and a common electrode “mounted . . . in spaced relationship with each other.” Ibid.[3] The claim sets forth additional elements, including that the cylindrical bar is to be held in such a way that each of the user’s hands “contact[s]” both electrodes on each side of the bar. Id., at 62. Further, the EMG signals detected by the two electrode pairs are to be “of substan-tially equal magnitude and phase” so that the difference amplifier will “produce a substantially zero [EMG] signal” upon subtracting the signals from one another. Ibid. B The dispute between the parties arose in the 1990’s, when Biosig allegedly disclosed the patented technology to StairMaster Sports Medical Products, Inc. According to Biosig, StairMaster, without ever obtaining a license, sold exercise machines that included Biosig’s patented technology, and petitioner Nautilus, Inc., continued to do so after acquiring the StairMaster brand. In 2004, based on these allegations, Biosig brought a patent infringement suit against Nautilus in the U. S. District Court for the Southern District of New York. With Biosig’s lawsuit launched, Nautilus asked the U. S. Patent and Trademark Office (PTO) to reexamine the ’753 patent. The reexamination proceedings centered on whether the patent was anticipated or rendered obvious by prior art—principally, a patent issued in 1984 to an inventor named Fujisaki, which similarly disclosed a heart-rate monitor using two pairs of electrodes and a difference amplifier. Endeavoring to distinguish the ’753 patent from prior art, Biosig submitted a declaration from Dr. Lekhtman. The declaration attested, among other things, that the ’753 patent sufficiently informed a person skilled in the art how to configure the detecting electrodes so as “to produce equal EMG [signals] from the left and right hands.” Id., at 160. Although the electrodes’ design variables—including spacing, shape, size, and material—cannot be standardized across all exercise machines, Dr. Lekhtman explained, a skilled artisan could undertake a “trial and error” process of equalization. This would entail experimentation with different electrode configurations in order to optimize EMG signal cancellation. Id., at 155–156, 158.[4] In 2010, the PTO issued a determination confirming the patentability of the ’753 patent’s claims. Biosig thereafter reinstituted its infringement suit, which the parties had voluntarily dismissed without prejudice while PTO reexamination was underway. In 2011, the District Court conducted a hearing to determine the proper construction of the patent’s claims, see Markman v. Westview Instruments, Inc., 517 U. S. 370 (1996) (claim construction is a matter of law reserved for court decision), including the claim term “in spaced relationship with each other.” According to Biosig, that “spaced relationship” referred to the distance between the live electrode and the common electrode in each electrode pair. Nautilus, seizing on Biosig’s submissions to the PTO during the reexamination, maintained that the “spaced relationship” must be a distance “greater than the width of each electrode.” App. 245. The District Court ultimately construed the term to mean “there is a defined relationship between the live electrode and the common electrode on one side of the cylindrical bar and the same or a different defined relationship between the live electrode and the common electrode on the other side of the cylindrical bar,” without any reference to the electrodes’ width. App. to Pet. for Cert. 43a–44a. Nautilus moved for summary judgment, arguing that the term “spaced relationship,” as construed, was indefinite under §112, ¶2. The District Court granted the motion. Those words, the District Court concluded, “did not tell [the court] or anyone what precisely the space should be,” or even supply “any parameters” for determining the appropriate spacing. Id., at 72a. The Federal Circuit reversed and remanded. A claim is indefinite, the majority opinion stated, “only when it is ‘not amenable to construction’ or ‘insolubly ambiguous.’ ” 715 F. 3d 891, 898 (2013) (quoting Datamize, LLC v. Plumtree Software, Inc., 417 F. 3d 1342, 1347 (CA Fed. 2005)). Under that standard, the majority determined, the ’753 patent survived indefiniteness review. Considering first the “intrinsic evidence”—i.e., the claim language, the specification, and the prosecution history—the majority discerned “certain inherent parameters of the claimed apparatus, which to a skilled artisan may be sufficient to understand the metes and bounds of ‘spaced relationship.’ ” 715 F. 3d, at 899. These sources of meaning, the majority explained, make plain that the distance separating the live and common electrodes on each half of the bar “cannot be greater than the width of a user’s hands”; that is so “because claim 1 requires the live and common electrodes to independently detect electrical signals at two distinct points of a hand.” Ibid. Furthermore, the major-ity noted, the intrinsic evidence teaches that this distance cannot be “infinitesimally small, effectively merging the live and common electrodes into a single electrode with one detection point.” Ibid. The claim’s functional provisions, the majority went on to observe, shed additional light on the meaning of “spaced relationship.” Surveying the record before the PTO on reexamination, the majority concluded that a skilled artisan would know that she could attain the indicated functions of equalizing and removing EMG signals by adjusting design variables, including spacing. In a concurring opinion, Judge Schall reached the majority’s result employing “a more limited analysis.” Id., at 905. Judge Schall accepted the majority’s recitation of the definiteness standard, under which claims amenable to construction are nonetheless indefinite when “the construction remains insolubly ambiguous.” Ibid. (internal quotation marks omitted). The District Court’s construction of “spaced relationship,” Judge Schall maintained, was sufficiently clear: the term means “there is a fixed spatial relationship between the live electrode and the common electrode” on each side of the cylindrical bar. Ibid. Judge Schall agreed with the majority that the intrinsic evidence discloses inherent limits of that spacing. But, unlike the majority, Judge Schall did not “presum[e] a functional linkage between the ‘spaced relationship’ limitation and the removal of EMG signals.” Id., at 906. Other limitations of the claim, in his view, and not the “ ‘spaced relationship’ limitation itself,” “included a functional requirement to remove EMG signals.” Ibid. We granted certiorari, 571 U. S. ___ (2014), and now vacate and remand. III A Although the parties here disagree on the dispositive question—does the ’753 patent withstand definiteness scrutiny—they are in accord on several aspects of the §112, ¶2 inquiry. First, definiteness is to be evaluated from the perspective of someone skilled in the relevant art. See, e.g., General Elec. Co. v. Wabash Appliance Corp., 304 U. S. 364, 371 (1938) . See also §112, ¶1 (patent’s specification “shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same” (emphasis added)). Second, in assessing definiteness, claims are to be read in light of the patent’s specification and prosecution history. See, e.g., United States v. Adams, 383 U. S. 39 –49 (1966) (specification); Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U. S. 722, 741 (2002) (prosecution history). Third, “[d]efiniteness is measured from the viewpoint of a person skilled in [the] art at the time the patent was filed.” Brief for Respondent 55 (emphasis added). See generally E. Manzo, Patent Claim Construction in the Federal Circuit §0.2, p. 9 (2014) (“Patent claims . . . should be construed from an objective perspective of a [skilled artisan], based on what the applicant actually claimed, disclosed, and stated during the application process.”). The parties differ, however, in their articulations of just how much imprecision §112, ¶2 tolerates. In Nautilus’ view, a patent is invalid when a claim is “ambiguous, such that readers could reasonably interpret the claim’s scope differently.” Brief for Petitioner 37. Biosig and the Solicitor General would require only that the patent provide reasonable notice of the scope of the claimed invention. See Brief for Respondent 18; Brief for United States as Amicus Curiae 9–10. Section 112, we have said, entails a “delicate balance.” Festo, 535 U. S., at 731. On the one hand, the definiteness requirement must take into account the inherent limitations of language. See ibid. Some modicum of uncertainty, the Court has recognized, is the “price of ensuring the appropriate incentives for innovation.” Id., at 732. One must bear in mind, moreover, that patents are “not addressed to lawyers, or even to the public generally,” but rather to those skilled in the relevant art. Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 437 (1902) (also stating that “any description which is sufficient to apprise [steel manufacturers] in the language of the art of the definite feature of the invention, and to serve as a warning to others of what the patent claims as a monopoly, is sufficiently definite to sustain the patent”).[5] At the same time, a patent must be precise enough to afford clear notice of what is claimed, thereby “ ‘appris[ing] the public of what is still open to them.’ ” Markman, 517 U. S., at 373 (quoting McClain v. Ortmayer, 141 U. S. 419, 424 (1891) ).[6] Otherwise there would be “[a] zone of uncertainty which enterprise and experimentation may enter only at the risk of infringement claims.” United Carbon Co. v. Binney & Smith Co., 317 U. S. 228, 236 (1942) . And absent a meaningful definiteness check, we are told, patent applicants face powerful incentives to inject ambigu-ity into their claims. See Brief for Petitioner 30–32 (citing patent treatises and drafting guides). See also Federal Trade Commission, The Evolving IP Marketplace: Aligning Patent Notice and Remedies With Competition 85 (2011) (quoting testimony that patent system fosters “an incentive to be as vague and ambiguous as you can with your claims” and “defer clarity at all costs”).[7] Eliminating that temptation is in order, and “the patent drafter is in the best position to resolve the ambiguity in . . . patent claims.” Halliburton Energy Servs., Inc. v. M–I LLC, 514 F. 3d 1244, 1255 (CA Fed. 2008). See also Hormone Research Foundation, Inc. v. Genentech, Inc., 904 F. 2d 1558, 1563 (CA Fed. 1990) (“It is a well-established axiom in patent law that a patentee is free to be his or her own lexicographer . . . .”). To determine the proper office of the definiteness command, therefore, we must reconcile concerns that tug in opposite directions. Cognizant of the competing concerns, we read §112, ¶2 to require that a patent’s claims, viewed in light of the specification and prosecution history, inform those skilled in the art about the scope of the invention with reasonable certainty. The definiteness requirement, so understood, mandates clarity, while recognizing that absolute precision is unattainable. The standard we adopt accords with opinions of this Court stating that “the certainty which the law requires in patents is not greater than is reasonable, having regard to their subject-matter.” Minerals Separation, Ltd. v. Hyde, 242 U. S. 261, 270 (1916) . See also United Carbon, 317 U. S., at 236 (“claims must be reasonably clear-cut”); Markman, 517 U. S., at 389 (claim construction calls for “the necessarily sophisticated analysis of the whole document,” and may turn on evaluations of expert testimony). B In resolving Nautilus’ definiteness challenge, the Fed-eral Circuit asked whether the ’753 patent’s claims were “amenable to construction” or “insolubly ambiguous.” Those formulations can breed lower court confusion,[8] for they lack the precision §112, ¶2 demands. It cannot be sufficient that a court can ascribe some meaning to a patent’s claims; the definiteness inquiry trains on the understanding of a skilled artisan at the time of the patent application, not that of a court viewing matters post hoc. To tolerate imprecision just short of that rendering a claim “insolubly ambiguous” would diminish the definiteness requirement’s public-notice function and foster the innovation-discouraging “zone of uncertainty,” United Carbon, 317 U. S., at 236, against which this Court has warned. Appreciating that “terms like ‘insolubly ambiguous’ may not be felicitous,” Brief for Respondent 34, Biosig argues the phrase is a shorthand label for a more probing inquiry that the Federal Circuit applies in practice. The Federal Circuit’s fuller explications of the term “insolubly ambiguous,” we recognize, may come closer to tracking the statutory prescription. See, e.g., 715 F. 3d, at 898 (case below) (“[I]f reasonable efforts at claim construction result in a definition that does not provide sufficient particularity and clarity to inform skilled artisans of the bounds of the claim, the claim is insolubly ambiguous and invalid for indefiniteness.” (internal quotation marks omitted)). But although this Court does not “micromanag[e] the Federal Circuit’s particular word choice” in applying patent-law doctrines, we must ensure that the Federal Circuit’s test is at least “probative of the essential inquiry.” Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U. S. 17, 40 (1997) . Falling short in that regard, the expressions “insolubly ambiguous” and “amenable to construction” permeate the Federal Circuit’s recent decisions concerning §112, ¶2’s requirement.[9] We agree with Nautilus and its amici that such terminology can leave courts and the patent bar at sea without a reliable compass.[10] IV Both here and in the courts below, the parties have advanced conflicting arguments as to the definiteness of the claims in the ’753 patent. Nautilus maintains that the claim term “spaced relationship” is open to multiple interpretations reflecting markedly different understandings of the patent’s scope, as exemplified by the disagreement among the members of the Federal Circuit panel.[11] Biosig responds that “spaced relationship,” read in light of the specification and as illustrated in the accompanying drawings, delineates the permissible spacing with sufficient precision. “[M]indful that we are a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709 , n. 7 (2005), we decline to apply the standard we have announced to the controversy between Nautilus and Biosig. As we have explained, the Federal Circuit invoked a standard more amorphous than the statutory definiteness requirement allows. We therefore follow our ordinary practice of remanding so that the Court of Appeals can reconsider, under the proper standard, whether the relevant claims in the ’753 patent are sufficiently definite. See, e.g., Johnson v. California, 543 U. S. 499, 515 (2005) ; Gasperini v. Center for Humanities, Inc., 518 U. S. 415, 438 (1996) . * * * For the reasons stated, we vacate the judgment of the United States Court of Appeals for the Federal Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. APPENDIX Patent No. 5,337,753, Figure 1Notes 1 In the Leahy-Smith America Invents Act, Pub. L. 112–29, , enacted in 2011, Congress amended several parts of the Patent Act. Those amendments modified §§112 and 282 in minor respects not pertinent here. In any event, the amended versions of those provisions are inapplicable to patent applications filed before September 16, 2012, and proceedings commenced before September 16, 2011. See §§4(e), 15(c), 20(), , notes following 35 U. S. C. §§2, 111, 119. Here, the application for the patent-in-suit was filed in 1992, and the relevant court proceedings were initiated in 2010. Accordingly, this opinion’s citations to the Patent Act refer to the 2006 edition of the United States Code. 2 This difference in polarity occurs because the heart is not aligned vertically in relation to the center of the body; the organ tilts leftward from apex to bottom. App. 213. 3 As depicted in figure 1 of the patent, at 41, reproduced in the Appendix to this opinion, the live electrodes are identified by numbers 9 and 13, and the common electrodes, by 11 and 15. 4 Dr. Lekhtman’s declaration also referred to an expert report prepared by Dr. Henrietta Galiana, Chair of the Department of Biomedical Engineering at McGill University, for use in the infringement litigation. That report described how Dr. Galiana’s laboratory technician, equipped with a wooden dowel, wire, metal foil, glue, electrical tape, and the drawings from the ’753 patent, was able in two hours to build a monitor that “worked just as described in the . . . patent.” , at 226. 5 See also v. , –66 (1923) (upholding as definite a patent for an improvement to a paper-making machine, which provided that a wire be placed at a “high” or “substantial elevation,” where “readers . . . skilled in the art of paper making and versed in the use of the . . . machine” would have “no difficulty . . . in determining . . . the substantial [elevation] needed” for the machine to operate as specified). 6 See also v. , (“The statutory requirement of particularity and distinctness in claims is met only when they clearly distinguish what is claimed from what went before in the art and clearly circumscribe what is foreclosed from future enterprise.”); v. , (“The limits of a patent must be known for the protection of the patentee, the encouragement of the inventive genius of others and the assurance that the subject of the patent will be dedicated ultimately to the public.”). 7 Online at http: / / www. ftc.gov / sites / default / files / documents /reports / evolving - ip - marketplace - aligning - patent - notice - and - remedies -competition - report - federal - trade / 110307patentreport.pdf (as visited May 30, 2014, and available in Clerk of Court’s case file). 8 See, v. , ___ F. Supp. 2d ___, ___, 2014 WL 869092, *4 (MD Fla., Mar. 5, 2014) (finding that “the account,” as used in claim, “lacks definiteness,” because it might mean several different things and “no informed and confident choice is available among the contending definitions,” but that “the extent of the indefiniteness . . . falls far short of the ‘insoluble ambiguity’ required to invalidate the claim”). 9 , v. , 600 F. 3d 1357, 1366 (CA Fed. 2010) (“the definiteness of claim terms depends on whether those terms can be given any reasonable meaning”); v. , 417 F. 3d 1342, 1347 (CA Fed. 2005) (“Only claims ‘not amenable to construction’ or ‘insolubly ambiguous’ are indefinite.”); v. , 265 F. 3d 1371, 1375 (CA Fed. 2001) (“If a claim is insolubly ambiguous, and no narrowing construction can properly be adopted, we have held the claim indefinite.”). See also Dept. of Commerce, Manual of Patent Examining Procedure §2173.02(I), p. 294 (9th ed. 2014) (PTO manual describing Federal Circuit’s test as upholding a claim’s validity “if some meaning can be gleaned from the language”). 10 The Federal Circuit suggests that a permissive definiteness standard “ ‘accord[s] respect to the statutory presumption of patent validity.’ ” 715 F. 3d 891, 902 (2013) (quoting , 265 F. 3d, at 1375). See also §282, ¶1 (“[a] patent shall be presumed valid,” and “[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity”); v. , 564 U. S. ___, ___ (2011) (slip op., at 1) (invalidity defenses must be proved by “clear and convincing evidence”).As the parties appear to agree, however, this presumption of validity does not alter the degree of clarity that §112, ¶2 demands from patent applicants; to the contrary, it incorporates that definiteness requirement by reference. See §282, ¶2(3) (defenses to infringement actions include “[i]nvalidity of the patent or any claim in suit for failure to comply with . . . any requirement of [§112]”). 11 Notably, however, all three panel members found Nautilus’ arguments unavailing.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus NAUTILUS, INC. v. BIOSIG INSTRUMENTS, INC. certiorari to the united states court of appeals for the federal circuit No. 13–369. Argued April 28, 2014—Decided June 2, 2014 The Patent Act requires that a patent specification “conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as [the] invention.” 35 U. S. C. §112, ¶2. This case concerns the proper reading of the statute’s clarity and precision demand. Assigned to respondent Biosig Instruments, Inc., the patent in dispute (the ’753 patent) involves a heart-rate monitor used with exercise equipment. Prior heart-rate monitors, the patent asserts, were often inaccurate in measuring the electrical signals accompanying each heartbeat (electrocardiograph or ECG signals) because of the presence of other electrical signals (electromyogram or EMG signals), generated by the user’s skeletal muscles, that can impede ECG signal detection. The invention claims to improve on prior art by detecting and processing ECG signals in a way that filters out the EMG interference. Claim 1 of the ’753 patent, which contains the limitations critical to this dispute, refers to a “heart rate monitor for use by a user in association with exercise apparatus and/or exercise procedures.” The claim “comprise[s],” among other elements, a cylindrical bar fitted with a display device; “electronic circuitry including a difference amplifier”; and, on each half of the cylindrical bar, a “live” electrode and a “common” electrode “mounted . . . in spaced relationship with each other.” Biosig filed this patent infringement suit, alleging that Nautilus, Inc., without obtaining a license, sold exercise machines containing Biosig’s patented technology. The District Court, after conducting a hearing to determine the proper construction of the patent’s claims, granted Nautilus’ motion for summary judgment on the ground that the claim term “in spaced relationship with each other” failed §112, ¶2’s definiteness requirement. The Federal Circuit reversed and remanded, concluding that a patent claim passes the §112, ¶2 threshold so long as the claim is “amenable to construction,” and the claim, as construed, is not “insolubly ambiguous.” Under that standard, the court determined, the ’753 patent survived indefiniteness review. Held: 1. A patent is invalid for indefiniteness if its claims, read in light of the patent’s specification and prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention. The parties agree that definiteness is to be evaluated from the perspective of a person skilled in the relevant art, that claims are to be read in light of the patent’s specification and prosecution history, and that definiteness is to be measured as of the time of the patent application. The parties disagree as to how much imprecision §112, ¶2 tolerates. Section 112’s definiteness requirement must take into account the inherent limitations of language. See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 731. On the one hand, some modicum of uncertainty is the “price of ensuring the appropriate incentives for innovation,” id., at 732; and patents are “not addressed to lawyers, or even to the public generally,” but to those skilled in the relevant art, Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403, 437. At the same time, a patent must be precise enough to afford clear notice of what is claimed, thereby “ ‘appris[ing] the public of what is still open to them,’ ” Markman v. Westview Instruments, Inc., 517 U.S. 370, 373, in a manner that avoids “[a] zone of uncertainty which enterprise and experimentation may enter only at the risk of infringement claims,” United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 236. The standard adopted here mandates clarity, while recognizing that absolute precision is unattainable. It also accords with opinions of this Court stating that “the certainty which the law requires in patents is not greater than is reasonable, having regard to their subject-matter.” Minerals Separation, Ltd. v. Hyde, 242 U.S. 261, 270. . 2. The Federal Circuit’s standard, which tolerates some ambiguous claims but not others, does not satisfy the statute’s definiteness requirement. The Court of Appeals inquired whether the ’753 patent’s claims were “amenable to construction” or “insolubly ambiguous,” but such formulations lack the precision §112, ¶2 demands. To tolerate imprecision just short of that rendering a claim “insolubly ambiguous” would diminish the definiteness requirement’s public-notice function and foster the innovation-discouraging “zone of uncertainty,” United Carbon, 317 U. S., at 236, against which this Court has warned. While some of the Federal Circuit’s fuller explications of the term “insolubly ambiguous” may come closer to tracking the statutory prescription, this Court must ensure that the Federal Circuit’s test is at least “probative of the essential inquiry.” Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17, 40. The expressions “insolubly ambiguous” and “amenable to construction,” which permeate the Federal Circuit’s recent decisions concerning §112, ¶2, fall short in this regard and can leave courts and the patent bar at sea without a reliable compass. . 3. This Court, as “a court of review, not of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, follows its ordinary practice of remanding so that the Federal Circuit can reconsider, under the proper standard, whether the relevant claims in the ’753 patent are sufficiently definite, see, e.g., Johnson v. California, 543 U.S. 499, 515. . 715 F.3d 891, vacated and remanded. Ginsburg, J., delivered the opinion for a unanimous Court.

A patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention. 35 U.S. C. §112, ¶2. This case concerns the proper reading of the statute, which requires that a patent specification "conclude with one or more claims particularly pointing out and distinctly claiming the part, improvement, or combination which [the applicant] claims as his invention or discovery." Petitioner Nautilus, Inc., asked the Patent and Trademark Office (PTO) to reexamine a patent that had been disclosed to Biosig, who allegedly disclosed the patented technology to StairMaster Sports Medical Products, Inc. (StairMaster), which, without ever obtaining a license, sold exercise machines that included the patent. The PTO reexamined the patent on the basis of a prior art, which similarly disclosed a heart-rate monitor using two pairs of electrodes and a difference amplifier. Endeavoring to distinguish the patent from prior art (Biosig submitted a declaration attesting that the patent sufficiently informed a skilled artisan how to configure the detecting electrodes so as to produce equal EMG signals from the left and right hands), the patent declared that there was a fixed spatial relationship between the live electrode and the common electrode on each side of the cylindrical bar. The court ultimately construed the term to mean a distance greater than the width of each electrode, thus filtering out the EMG interference. Ultimately, the District Court dismissed the patent-in-suit claim, but the Court of Appeals reversed and remanded, holding that a claim is indefinite only when it is not amenable to construction or is not insolubly ambiguous. Held: The Federal Circuit's formulation, which tolerates some ambiguous claims but not others, does not satisfy the statute's definiteness requirement. . (a) A patent is not invalid for infiniteness under §112. ¶2, since its claims are to be evaluated in the light of a specification, specification, and prosecution history. See, e.g., Wabash Instruments Inc. v. Westview Instruments,. P.. (b) To reconcile the concerns of the skilled art dealer in the patent office with the concerns about the validity of the patent specification and the legal prosecution history requires clarity, while recognizing that absolute precision is unattainable. It cannot be sufficient that a court can ascribe some meaning to a patent's claims. Section 112 requires a patent to afford clear notice of what is claimed, thereby enabling the public to still open to them. Otherwise there would be a zone of uncertainty which enterprise and experimentation may enter only at the risk of infringement claims, and patent applicants face powerful incentives to inject ambigu-ity into their claims, which may lead to the creation of new uncertainty zones. Eliminating that temptation is in order, and a patent drafter is in the best position to resolve the ambiguity in... patent claims. Pp. 468 U. S. 709-710. (c) Nor can the statutory requirement be invoked by a more definite standard than the standard announced to the controversy between Nautilis and Biosiger. Such a standard allows a more precise standard to follow than a more ambiguous statutory requirement, since a narrowing of the statutory language suggests that a more general standard can be adopted with respect to a more indefinite statutory claim.. 715 F. 3d 891 and 415 F.2d 515 (CA 2 1989), vacated and remand remanded. THE FOURTH CIRCUIT OF APPEALS OF THE UNITED STATES COURT OF JUSTICE, joined by THE CHIEF JUSTICE and JUSTICE O'CONNOR, concluded: 1. In resolving Nautautilus and its amici, the Fed-eral Circuit asked whether the patent claims were capable of construction, or were not. Those formulations can breed lower court confusion, for they lack the precision §112 requires, and, to tolerate imprecision just short of rendering a claim ambiguous, would diminish such requirement's public-notice function and foster the innovation-discouraging "zone of uncertainty.".. 2. This Court declines to apply a standard announced by the Federal Circuit, since such terminology can leave courts and the patent bar at sea without a reliable compass. Although the parties appear to agree that the presumption of validity does not alter the degree of clarity that §112 demands from patent applicants, to the contrary, it incorporates that definitification requirement by reference. While this Court does not micromanag[e] the Fed Circuit in applying patent-law doctrines, it must ensure that the test is at least "probative of the essential inquiry...." Warner-Jenkinson-Vacated Davis Chemical Co., 530 U.

2013_12-462

https://www.oyez.org/cases/2013/12-462

. We must decide in this case whether the Airline Deregulation Act pre-empts a state-law claim for breach of the implied covenant of good faith and fair dealing. Following our interpretation of the Act in American Airlines, Inc. v. Wolens, 513 U. S. 219 (1995) , we hold that such a claim is pre-empted if it seeks to enlarge the contractual obligations that the parties voluntarily adopt. And because the doctrine is invoked in the present case in an attempt to expand those obligations, we reverse the judgment of the Court of Appeals. I A Like many airlines, petitioner Northwest, Inc. (Northwest), established a frequent flyer program, its World-Perks Airline Partners Program, to attract loyal cus-tomers. Under this program, members are able to earn “miles” by taking flights operated by Northwest and other “partner” airlines. Members can then redeem these miles for tickets and service upgrades with Northwest or its airline partners. Respondent became a member of Northwest’s World-Perks program in 1999, and as a result of extensivetravel on Northwest flights, he achieved “Platinum Elite” status (the highest level available) in 2005. In 2008, however, Northwest terminated respondent’s membership, apparently in reliance on a provision of the WorldPerks agreement that provided that “[a]buse of the . . . program (including . . . improper conduct as determined by [Northwest] in its sole judgment[ ) ] . . . may result in cancellation of the member’s account.” App. 64–65. According to respondent, a Northwest representative telephoned him in June 2008 and informed him that his“Platinum Elite” status was being revoked because he had “ ‘abused’ ” the program. Id., at 35. In a letter sent about two weeks later, Northwest wrote: “[Y]ou have contacted our office 24 times since December 3, 2007 regarding travel problems, including9 incidents of your bag arriving late at the luggage carousel. . . . . . . . . “ Since December 3, 2007, you have continually asked for compensation over and above our guidelines. We have awarded you $1,925.00 in travel credit vouchers, 78,500 WorldPerks bonus miles, a voucher extension for your son, and $491.00 in cash reimbursements. . . . “ Due to our past generosity, we must respectfully advise that we will no longer be awarding you compensation each time you contact us.” Id., at 58–59. Respondent requested clarification of his status, but a Northwest representative sent him an e-mail stating that “[a]fter numerous conversations with not only the Legal Department, but with members of the WorldPerks department, I believe your status with the program should be very clear.” Id., at 60. B Alleging that Northwest had ended his membership asa cost-cutting measure tied to Northwest’s merger with Delta Air Lines, respondent filed a class action in the United States District Court for the Southern District of California on behalf of himself and all other similarly situated WorldPerks members. Respondent’s complaint asserted four separate claims.[1] First, his complaint alleged that Northwest had breached its contract by re-voking his “Platinum Elite” status without valid cause. Second, the complaint claimed that Northwest violated the duty of good faith and fair dealing because it terminated his membership in a way that contravened his reasonable expectations with respect to the manner in which Northwest would exercise its discretion. Third, the complaint asserted a claim for negligent misrepresentation, and fourth, the complaint alleged intentional misrepresentation. Respondent sought damages in excess of $5 million, as well as injunctive relief requiring Northwest to restore the class members’ WorldPerks status and prohibiting Northwest from future revocations of membership. The District Court held that respondent’s claims for breach of the covenant of good faith and fair dealing, negligent misrepresentation, and intentional misrepresentation were pre-empted by the Airline Deregulation Act of 1978 (ADA or Act) as amended, 49 U. S. C. §41713. These claims, the court concluded, were “relate[d] to” Northwest’s rates and services and thus fell within the ADA’s express pre-emption clause. App. to Pet. for Cert. 69. Respondent’s remaining claim—for breach of contract—was dismissed without prejudice under Federal Rule of Civil Procedure 12(b)(6). The court held that respondent had failed to identify any material breach because the frequent flyer agreement gave Northwest sole discretion to determine whether a participant had abused the program. Respondent appealed the dismissal of his breach of the duty of good faith and fair dealing claim but not the other claims that the court had dismissed. The Ninth Circuit reversed. 695 F. 3d 873 (2012). Relying on pre-Wolens Circuit precedent, the Ninth Circuit first held that a breach of implied covenant claim is “ ‘too tenuously connected to airline regulation to trigger preemption under the ADA.’ ” 695 F. 3d, at 879. Sucha claim, the Ninth Circuit wrote, “does not interfere with the [Act’s] deregulatory mandate” and does not “ ‘forcethe Airlines to adopt or change their prices, routes or services—the prerequisite for . . . preemption.’ ” Id., at 880. In addition, the Court held that the covenant of good faith and fair dealing does not fall within the terms of the Act’s pre-emption provision because it does not have a “direct effect” on either “prices” or “services.” Id., at 877, 881. We granted certiorari. 569 U. S. ___ (2013). II A Before the enactment of the ADA, the Federal Aviation Act of 1958 empowered the Civil Aeronautics Board to regulate the interstate airline industry. Pursuant to this authority, the Board closely regulated air carriers, controlling, among other things, routes, rates, and services. See, e.g., Western Air Lines, Inc. v. CAB, 347 U. S. 67 (1954) ; Federal Aviation Act of 1958, 72Stat. 731. And since the Federal Aviation Act contained a saving provision preserving pre-existing statu-tory and common-law remedies, §1106, id., at 798, air carriers were also regulated by the States. See Morales v. Trans World Airlines, Inc., 504 U. S. 374, 378 (1992) . In 1978, however, Congress enacted the ADA, which sought to promote “efficiency, innovation, and low prices” in the airline industry through “maximum reliance on competitive market forces and on actual and potential competition.” 49 U. S. C. §§40101(a)(6), (12)(A). While the ADA did not repeal the predecessor law’s saving provision, it included a pre-emption provision in order to “ensure that the States would not undo federal deregulation with regulation of their own.” Morales supra, at 378. In its current form, this provision states that “a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” §41713(b)(1). We have had two occasions to consider the ADA’s pre-emptive reach. In Morales, we held that the ADApre-empted the use of state consumer protection laws to regulate airline advertising. We recognized that the key phrase “related to” expresses a “broad pre-emptive purpose.” 504 U. S., at 383. Noting our interpretation of similar language in the pre-emption provision of the Employee Retirement and Income Security Act of 1974, 29 U. S. C. §1144(a), we held that a claim “relat[es] to rates, routes, or services,” within the meaning of the ADA, if the claim “ha[s] a connection with, or reference to, airline ‘rates, routes, or services.’ ” 504 U. S., at 384. The older saving provision, we concluded, did not undermine this conclusion. Id., at 384–385. Subsequently, in American Airlines, Inc. v. Wolens, 513 U. S. 219 (1995) , we considered the application of the ADA pre-emption provision to two types of claims concerning an airline’s frequent flyer program: first, claims under the Illinois Consumer Fraud and Deceptive Business Practices Act challenging an airline’s devaluation of earned miles (chiefly as the result of the imposition of “blackout dates” and limits on the number of seats available for customers wishing to obtain tickets by using those miles) and, second, breach of contract claims. We reaffirmed Morales’ broad interpretation of the ADA pre-emption provision and held that this provision barred the claims based on the Illinois statute but not the breach-of-contract claims. “[T]erms and conditions airlines offer and passengers accept,” we wrote, “are privately ordered obligations and thus do not amount to a State’s ‘enact[ment] or enforce[ment] [of] any law, rule, regulation, standard, or other provision having the force and effect of law’ within the meaning of [the ADA pre-emption provision].” 513 U. S., at 228–229. With this background in mind, we turn to the question whether the ADA pre-empts respondent’s claim for breach of the implied covenant of good faith and fair dealing. B The first question we address is whether, as respondent now maintains, the ADA’s pre-emption provision applies only to legislation enacted by a state legislature and regulations issued by a state administrative agency but not to a common-law rule like the implied covenant of good faith and fair dealing. We have little difficulty rejecting this argument. To begin, state common-law rules fall comfortably within the language of the ADA pre-emption provision. As noted above, the current version of this provision applies to state “law[s], regulation[s], or other provision[s] having the force and effect of law,” 49 U. S. C. §41713(b)(1). It is routine to call common-law rules “provisions.” See, e.g., Madsen v. Women’s Health Center, Inc., 512 U. S. 753, 765, n. 3 (1994) ; United States v. Barnett, 376 U. S. 681 –700 (1964); Brown v. United Airlines, Inc., 720 F. 3d 60, 68 (CA1 2013) (“[W]hen read in context, the word ‘provision’ in the ADA preemption provision can most appropriately be construed to include common law”). And a common-law rule clearly has “the force and effect of law.” In Wolens, we noted that this phrase is most naturally read to “ ‘refe[r] to binding standards of conduct that operate irrespective of any private agreement,’ ” 513 U. S., at 229, n. 5, and we see no basis for holding that such standards must be based on a statute or regulation as opposed to the common law. This understanding becomes even clearer when the original wording of the pre-emption provision is taken into account. When first enacted in 1978, this provision also applied to “rule[s]” and “standard[s],” and there surely can be no doubt that this formulation encompassed common-law rules. Indeed, we held in CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) , that virtually identical language in the Federal Railroad Safety Act of 1970 includes “[l]egal duties imposed . . . by the common law.” See also Riegel v. Medtronic, Inc., 552 U. S. 312, 324 (2008) (holding that a State’s “ ‘requirements’ ” “includ[e] [the state’s] common-law duties”). While “rule[s]” and “standard[s]” are not mentioned in the current version of the statute, this omission is the result of a recodification that was not meant to affect the provision’s meaning. Those additional terms were deleted as part of a wholesale recodification of Title 49 in 1994, but Congress made it clear that this recodification did not effect any “substantive change.” § 1(a), 108Stat. 745. In arguing that common-law rules fall outside the scope of the ADA pre-emption provision, respondent relies on our decision in Sprietsma v. Mercury Marine, 537 U. S. 51 (2002) , which held that the Federal Boat Safety Act of 1971 did not pre-empt a common-law tort claim, but there are critical differences between the pre-emption provisions in the Boat Safety Act and the ADA. The Boat Safety Act provision applies only to “a law or regulation,” 46 U. S. C. §4306, whereas the ADA provision, as just explained, is much more broadly worded. In addition, the relationship between the ADA’s pre-emption provision and the saving provision carried over from the prior law is also quite different. The Sprietsma decision placed substantial weight on the Boat Safety Act’s saving provision, which was enacted at the same time as the pre-emption provision, but we have described the Federal Aviation Act saving clause as “a relic of the pre-ADA/no pre-emption regime.” Morales, 504 U. S., at 385. That provision applies to the entire, sprawling Federal Aviation Act, and not just to the ADA, and as we held in Morales, this “general ‘remedies’ saving clause cannot be allowed to supersede the specific substantive pre-emption provision.” Ibid. See also Wolens, supra, at 245 (O’Connor, J., concurring in judgment in part and dissenting in part). For these reasons, respondent’s interpretation of the ADA pre-emption provision cannot be squared with the provision’s terms. Exempting common-law claims would also disserve the central purpose of the ADA. The Act eliminated federal regulation of rates, routes, and services in order to allow those aspects of air transportation to be set by market forces, and the pre-emption provision was included to prevent the States from undoing what the Act was meant to accomplish. Morales, supra, at 378. What is important, therefore, is the effect of a state law, regulation, or provision, not its form, and the ADA’s deregulatory aim can be undermined just as surely by a state common-law rule as it can by a state statute or regulation. See Medtronic, Inc., supra, at 325 (recognizing that state tort law that imposes certain requirements would “disrup[t] the federal scheme no less than state regulatory law to the same effect”). As the First Circuit has recognized, “[i]t defies logic to think that Congress would disregard real-world consequences and give dispositive effect to the form of a clear intrusion into a federally regulated industry.” Brown, 720 F. 3d, at 66–67. Finally, if all state common-law rules fell outside the ambit of the ADA’s pre-emption provision, we would have had no need in Wolens to single out a subcategory of common-law claims, i.e., those based on the parties’ voluntary undertaking, as falling outside that provision’s coverage. Accordingly, we conclude that the phrase “other provision having the force and effect of law” includes common-law claims. C We must next determine whether respondent’s breach of implied covenant claim “relates to” “rates, routes, or services.” A claim satisfies this requirement if it has “a connection with, or reference to, airline” prices, routes, or services, Morales, supra, at 384, and the claim at issue here clearly has such a connection. That claim seeks respondent’s reinstatement in Northwest’s frequent flyer program so that he can access the program’s “valuable . . . benefits,” including “flight upgrades, accumulated mileage, loyalty program status or benefits on other airlines, and other advantages.” App. 49–50. Like the frequent flyer program in Wolens, the Northwest program is connected to the airline’s “rates” because the program awards mileage credits that can be redeemed for tickets and upgrades. See 513 U. S., at 226. When miles are used in this way, the rate that a customer pays, i.e., the price of a particular ticket, is either eliminated or reduced. The program is also connected to “services,” i.e., access to flights and to higher service categories. Ibid. Respondent argues that his claim differs from the claims in Wolens because he “does not challenge access to flights and upgrades or the number of miles needed to obtain air tickets” but instead contests “the termination of his WorldPerks elite membership,” Brief for Respondent 12, but this argument ignores respondent’s reason for seeking reinstatement of his membership, i.e., to obtain reduced rates and enhanced services. Respondent’s proffered distinction has no substance. Respondent and amici suggest that Wolens is not controlling because frequent flyer programs have fundamentally changed since the time of that decision. We are told that “most miles [are now] earned without consuming airline services” and are “spent without consuming airline services.” Brief for State of California et al. 18 (emphasis deleted). But whether or not this alleged change might have some impact in a future case, it is not implicated here. In this case, respondent did not assert that he earned his miles from any activity other than taking flights or that he attempted to redeem miles for anything other than tickets and upgrades. See Tr. of Oral Arg. 47–48. III With these preliminary issues behind us, we turn to the central issue in this case, i.e., whether respondent’s implied covenant claim is based on a state-imposed obligation or simply one that the parties voluntarily undertook. Petitioners urge us to hold that implied covenant claims are always pre-empted, and respondent suggests that such claims are generally not pre-empted, but the reasoning of Wolens neither dooms nor spares all such claims. While most States recognize some form of the good faith and fair dealing doctrine, it does not appear that there is any uniform understanding of the doctrine’s precise meaning. “[T]he concept of good faith in the performance of contracts ‘is a phrase without general meaning (or meanings) of its own.’ ” Tymshare, Inc. v. Covell, 727 F. 2d 1145, 1152 (CADC 1984) (Scalia, J.) (quoting Summers, “Good Faith” in General Contract Law and the Sales Provisions of the Uniform Commercial Code, 54 Va. L. Rev. 195, 201 (1968)); see also Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv. L. Rev. 369, 371 (1980). Of particular importance here, while some States are said to use the doctrine “to effectuate the intentions of parties or to protect their rea-sonable expectations,” ibid., other States clearly em-ploy the doctrine to ensure that a party does not “ ‘violate community standards of decency, fairness, or reasonableness.’ ” Universal Drilling Co., LLC v. R & R Rig Service, LLC, 2012 WY 31, 37, 271 P. 3d 987, 999; DDP Roofing Services, Inc. v. Indian River School Dist., 2010 WL 4657161, *3 (Del. Super. Ct., Nov. 16, 2010); Allworth v. Howard Univ., 890 A. 2d 194, 201–202 (D. C. 2006); Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Center Assocs., 182 N. J. 210, 224, 864 A. 2d 387, 395396 (2005); Harper v. Healthsource New Hampshire, 140 N. H. 770, 776, 674 A. 2d 962, 965–966 (1996); Borys v. Josada Builders, Inc., 110 Ill. App. 3d 29, 32–33, 441 N. E. 2d 1263, 1265–1266 (1982); Restatement (Second) of Contracts §205, Comment a (1979). See also Summers, The General Duty of Good Faith—Its Recognition and Conceptualization, 67 Cornell L. Rev. 810, 812 (1982). Whatever may be the case under the law of other jurisdictions, it seems clear that under Minnesota law, which is controlling here, see n. 1, supra, the implied covenant must be regarded as a state-imposed obligation.[2] Re-spondent concedes that under Minnesota law parties cannot contract out of the covenant. See Tr. of Oral Arg. 33–34; see also In re Hennepin Cty. 1986 Recycling Bond Litigation, 540 N. W. 2d 292, 502 (Minn. 1995); Sterling Capital Advisors, Inc. v. Herzog, 575 N. W. 2d 121, 125 (Minn. App. 1998); Minnwest Bank Central v. Flagship Properties LLC, 689 N. W. 2d 295, 303 (Minn. App. 2004). And as a leading commentator has explained, a State’s “unwillingness to allow people to disclaim the obligation of good faith . . . shows that the obligation cannot be implied, but is law imposed.” 3A A. Corbin, Corbin on Contracts §654A, p. 88 (L. Cunningham & A. Jacobsen eds. Supp. 1994). When the law of a State does not authorize parties to free themselves from the covenant, a breach of covenant claim is pre-empted under the reasoning of Wolens. Another feature of Minnesota law provides an additional, independent basis for our conclusion. Minnesota law holds that the implied covenant applies to “every contract,” In re Hennepin Cty., supra, at 502, with the notable exception of employment contracts. Hunt v. IBM Mid America Employees Fed. Credit Union, 384 N. W. 2d 853, 857–858 (Minn. 1986). The exception for employment contracts is based, in significant part, on “policy reasons,” id., at 858, and therefore the decision not to exempt other types of contracts must be based on a policy determination, namely, that the “policy reasons” that support the rule for employment contracts do not apply (at least with the same force) in other contexts. When the application of the implied covenant depends on state policy, a breachof implied covenant claim cannot be viewed as simply an attempt to vindicate the parties’ implicit understanding of the contract. For these reasons, the breach of implied covenant claim in this case cannot stand, but petitioners exhort us to go further and hold that all such claims, no matter the content of the law of the relevant jurisdiction, are pre-empted. If pre-emption depends on state law, petitioners warn, airlines will be faced with a baffling patchwork of rules, and the deregulatory aim of the ADA will be frustrated. But the airlines have means to avoid such a result. A State’s implied covenant rules will escape pre-emption only if the law of the relevant State permits an airline to contract around those rules in its frequent flyer program agreement, and if an airline’s agreement is governed by the law of such a State, the airline can specify that the agreement does not incorporate the covenant. While the inclusion of such a provision may impose transaction costs and presumably would not enhance the attractiveness of the program, an airline can decide whether the benefits of such a provision are worth the potential costs. Our holding also does not leave participants in frequent flyer programs without protection. The ADA is based on the view that the best interests of airline passengers are most effectively promoted, in the main, by allowing the free market to operate. If an airline acquires a reputation for mistreating the participants in its frequent flyer program (who are generally the airline’s most loyal and valuable customers), customers can avoid that program and may be able to enroll in a more favorable rival program. Federal law also provides protection for frequent flyer program participants. Congress has given the Department of Transportation (DOT) the general authority to prohibit and punish unfair and deceptive practices in air transportation and in the sale of air transportation, 49 U. S. C. §41712(a), and Congress has specifically authorized the DOT to investigate complaints relating to frequent flyer programs. See FAA Modernization andReform Act of 2012, §408(6), 126Stat. 87. Pursuant to these provisions, the DOT regularly entertains and acts on such complaints.[3] We note, finally, that respondent’s claim of ill treatment by Northwest might have been vindicated if he had pursued his breach-of-contract claim after its dismissal by the District Court. Respondent argues that, contrary to the holding of the District Court, the frequent flyer agreement did not actually give Northwest unfettered discretion to terminate his membership in the program, see Brief for Respondent 20–21, and the United States makes a related argument, namely, that even if the agreement gave Northwest complete discretion with respect to a determination regarding abuse of the program, the agreement did not necessarily bar a claim asserting that membership was ended for an ulterior reason, such as an effort to cut costs. If respondent had appealed the dismissal of his breach-of-contract claim, he could have presented these arguments to the Court of Appeals, but he chose not to press that claim. He voluntarily dismissed the breach-of-contract claim and instead appealed only the breach of implied covenant claim, which we hold to be pre-empted. * * * Because respondent’s implied covenant of good faithand fair dealing claim seeks to enlarge his contractual agreement with petitioners, we hold that 49 U. S. C. §41713(b)(1) pre-empts the claim. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 Applying California choice-of-law rules, the District Court held that Minnesota law applies because respondent “was a resident of Minneapolis, appears to fly in and out of Minnesota, and Northwest’s principal place of business is Minnesota.” App. to Pet. for Cert. 70. That determination was not challenged on appeal. 2 Like Minnesota, some other States preclude a party from waiving the obligations of good faith and fair dealing. v. , 927 So. 2d 810, 813, n. 5 (Ala. 2005); v. , 240 P. 3d 834, 844 (Alaska 2010); v. , 201 Ariz. 474, 491, 38 P. 3d 12, 29 (2002); v. , 224 Conn. 231, 238, 618 A. 2d 501, 505 (1992); v. , 878 A. 2d 434, 442 (Del. 2005); v. , 933 A. 2d 314, 333 (D. C. 2007); v. , 873 F. Supp. 808, 815 (SDNY 1994); v. , 83 S. W. 3d 647, 652 (Mo. App. 2002) (“When terms are present that directly nullify the implied covenants of good faith and reasonable efforts, . . . the contract is void for lack of mutuality”); v. , 2008 WY 134, ¶31, 196 P. 3d 184, 196. 3 See DOT, Air Travel Consumer Report 44 (Feb. 2014), online at http://www.dot.gov/sites/dot.dev/files/docs/2014_February_ATCR.pdf (as visited Mar. 31, 2014, and available in Clerk of Court’s case file).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus NORTHWEST, INC., et al. v. GINSBERG certiorari to the united states court of appeals for the ninth circuit No. 12–462. Argued December 3, 2013—Decided April 2, 2014 Petitioner Northwest, Inc., terminated respondent’s membership in its frequent flyer program, apparently based on a provision in the frequent flyer agreement that gave Northwest sole discretion to determine whether a participant had abused the program. Respondent filed suit, asserting, as relevant here, that Northwest had breached its contract by revoking his membership status without valid cause and had violated the duty of good faith and fair dealing because it terminated his membership in a way that contravened his reasonable expectations. The District Court found that the Airline Deregulation Act of 1978 (ADA) pre-empted the breach of the duty of good faith and fair dealing claim and dismissed the breach of contract claim without prejudice. Respondent appealed only the dismissal of his breach of the duty of good faith and fair dealing claim. The Ninth Circuit reversed, finding that claim “ ‘too tenuously connected to airline regulation to trigger’ ” ADA pre-emption. Held: 1. The ADA pre-empts a state-law claim for breach of the implied covenant of good faith and fair dealing if it seeks to enlarge the contractual obligations that the parties voluntarily adopt. . (a) Before the ADA was enacted, air carriers’ routes, rates, and services were regulated under the Federal Aviation Act of 1958. And because that Act contained a saving provision preserving pre-existing statutory and common-law remedies, air carriers were also regulated by the States. The ADA did not repeal that saving provision, but it did include a pre-emption provision to prohibit States from “enact[ing] or enforc[ing] a law, regulation, or other provision having the force and effect of law related to [an air carrier’s] price, route, or service,” 49 U. S. C. §41713(b)(1), thus ensuring that “States would not undo federal deregulation with regulation of their own,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378. In Morales, the Court recognized that the key phrase “related to” expresses a “broad pre-emptive purpose,” id., at 383, and held that the ADA pre-empted the use of state consumer protection laws to regulate airline advertising, concluding that “relat[es] to” means “ha[s] a connection with, or reference to, airline ‘rates, routes, or services,’ ” id., at 384. And in American Airlines, Inc. v. Wolens, 513 U.S. 219, the Court found that the ADA pre-empted the use of an Illinois consumer law to challenge an airline’s devaluation of frequent flyer earned miles. But it did not pre-empt breach of contract claims because “terms and conditions airlines offer and passengers accept are privately ordered obligations” not “ ‘a State’s “enact[ment] or enforce[ment] [of] any law, rule, regulation, standard, or other provision having the force and effect of law” within the [pre-emption provision’s] meaning.’ ” Id., at 228–229. . (b) The phrase “other provision having the force and effect of law” includes state common-law rules like the implied covenant at issue. Common-law rules are routinely called “provisions,” see, e.g., Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 765, n. 3, and they clearly have “the force and effect of law.” The pre-emption provision’s original language confirms this understanding. As first enacted, the provision also applied to “rule[s]” and “standard[s],” a formulation encompassing common-law rules. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664. And Congress made clear that the deletion of those terms as part of Title 49’s wholesale recodification effected no “substantive change.” §1(a), 108Stat. 745. Respondent’s reliance on Sprietsma v. Mercury Marine, 537 U.S. 51, is misplaced. There, the Court held that the Federal Boat Safety Act of 1971 did not pre-empt a common-law tort claim, but that Act’s pre-emption provision is more narrowly worded than the ADA provision. The Boat Safety Act’s saving and pre-emption provisions were also enacted at the same time, while the Federal Aviation Act’s general remedies saving clause is “a relic of the pre-ADA/no pre-emption regime,” Morales, 504 U. S., at 385, that “cannot be allowed to supersede the specific substantive pre-emption provision,” ibid. Exempting common-law claims would also disserve the ADA’s central purpose, which was to eliminate federal regulation of rates, routes, and services so they could be set by market forces. Finally, if all state common-law rules fell outside the pre-emption provision’s ambit, Wolens would not have singled out a subcategory, for common-law claims based on the parties’ voluntary undertaking, as falling outside that provision’s coverage. . (c) Respondent’s claim “relates to” “rates, routes, or services.” It clearly has “a connection with or reference to airline” prices, routes, or services, Morales, 504 U. S., at 384. As in Wolens, Northwest’s program connects to the airline’s “rates” by awarding mileage credits redeemable for tickets and upgrades, thus eliminating or reducing ticket prices. It also connects to “services,” i.e., access to flights and higher service categories. Respondent’s counterarguments are unpersuasive. His claim that he is contesting his termination, not access to flights or upgrades, ignores his reason for seeking reinstatement: to obtain reduced rates and enhanced services. Although respondent and amici claim there have been fundamental changes in the way that frequent flyer miles are earned since Wolens was decided, that does not matter here where respondent did not assert that he earned miles from any activity but taking flights or that he attempted to redeem miles for anything but tickets and upgrades. . 2. Because respondent’s implied covenant claim seeks to enlarge his contractual agreement with petitioners, it is pre-empted by §41713(b)(1). Under Minnesota law, which controls here, the implied covenant must be regarded as a state-imposed obligation. Minnesota law does not permit parties to contract out of the covenant. And when a State’s law does not authorize parties to free themselves from the covenant, a breach of covenant claim is pre-empted under Wolens. As an independent basis for this conclusion, if, as Minnesota law provides, the implied covenant applies to “every contract” except employment contracts for “policy reasons,” then the decision not to exempt other types of contracts must likewise be based on a policy determination, namely, that the policy reason for the employment contract rule does not apply in other contexts. Petitioners claim that the refusal to pre-empt all implied covenant claims, regardless of state law, will lead to a patchwork of rules that will frustrate the ADA’s deregulatory aim. But airlines can avoid such a result if they contract out of covenants where permitted by state law. Nor are participants in frequent flyer programs left without protection. They can avoid an airline with a poor reputation and possibly enroll in a more favorable rival program. Moreover, the Department of Transportation has the authority to investigate complaints about frequent flyer programs. Finally, respondent might have been able to vindicate his claim of ill treatment by Northwest had he appealed his breach of contract claim. . 695 F.3d 873, reversed and remanded. Alito, J., delivered the opinion for a unanimous Court.

Respondent became a member of petitioner airline petitioner Northwest, Inc. (Northwest), which established a frequent flyer program to attract loyal cus-tomers. However, in 2008, Northwest terminated respondent's membership, apparently in reliance on a provision of the program that provided that improper conduct as determined by Northwest in its sole judgment could result in cancellation of the member's account. Respondent then filed a class action in Federal District Court on behalf of himself and other similarly situated WorldPerks members, alleging, inter alia, that Northwest had breached its contract by re-voking his status without valid cause, that petitioner violated the duty of good faith and fair dealing because it terminated his membership in a way that contravened his reasonable expectations with respect to the manner in which Northwest would exercise its discretion, and that he had negligent misrepresentation and intentional misrepresentation. The District Court held that respondent had failed to identify any breach of the contract and that the remaining claims fell within the pre-emption clause of the Civil Aeronautics Procedure, and dismissed the complaint. The Court of Appeals reversed, holding that a breach of implied covenant claim is too tenuously connected to airline regulation to trigger preemption under the Airline Deregulation Act. Held: The pre-emptive reach of the Anti-Deregulatory Act, 49 U.S.C. §41713(b)(1), is not precluded if it seeks to enlarge the contractual obligations that the parties voluntarily adopt. . (a) The phrase "other provision having the force and effect of law" includes common-law claims. A claim satisfies this requirement if it has a connection with, or reference to, airline prices, routes, or services, Morales v. Trans World Airlines, Inc., 504 U. S. 374, 378 (1992). Here, the claim at issue here has such a connection, since the Northwest program is connected to the airline program because the program awards mileage credits that can be redeemed for tickets and upgrades. When miles are used in this way, the rate that a customer pays, i.e., the price of a particular ticket, is either eliminated or reduced. The program is also connected to access to flights and to higher service categories. Furthermore, even if the frequent flyer agreement gave Northwest complete discretion to terminate respondent membership, the agreement did not necessarily bar a claim asserting that membership was ended for an ulterior reason, such as an effort to cut costs. Respondent voluntarily dismissed the breach-of-contract claim and instead appealed only the breach of covenant claim. P.. 592 F. 3d 873, reversed and remanded. WHITE, J., wrote the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN J., filed an opinion concurring in the judgment and dissenting in part, post, p..

2013_12-1184

https://www.oyez.org/cases/2013/12-1184

.[1]* Section 285 of the Patent Act authorizes a district court to award attorney’s fees in patent litigation. It provides, in its entirety, that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U. S. C. §285. In Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378 (2005), the United States Court of Appeals for the Federal Circuit held that “[a] case may be deemed exceptional” under §285 only in two limited circumstances: “when there has been some material inappropriate conduct,” or when the litigation is both “brought in subjective bad faith” and “objectively baseless.” Id., at 1381. The question before us is whether the Brooks Furniture framework is consistent with the statutory text. We hold that it is not. I A Prior to 1946, the Patent Act did not authorize the awarding of attorney’s fees to the prevailing party in patent litigation. Rather, the “American Rule” governed: “ ‘[E]ach litigant pa[id] his own attorney’s fees, win or lose . . . .’ ” Marx v. General Revenue Corp., 568 U. S. ___, ___ (2013) (slip op., at 9). In 1946, Congress amended the Patent Act to add a discretionary fee-shifting provision, then codified in §70, which stated that a court “may in its discretion award reasonable attorney’s fees to the prevailing party upon the entry of judgment in any patent case.” 35 U. S. C. §70 (1946 ed.).[2] Courts did not award fees under §70 as a matter of course. They viewed the award of fees not “as a penalty for failure to win a patent infringement suit,” but as appropriate “only in extraordinary circumstances.” Park-In-Theatres, Inc. v. Perkins, 190 F. 2d 137, 142 (CA9 1951). The provision enabled them to address “unfairness or bad faith in the conduct of the losing party, or some other equitable consideration of similar force,” which made a case so unusual as to warrant fee-shifting. Ibid.; see also Pennsylvania Crusher Co. v. Bethlehem Steel Co., 193 F. 2d 445, 451 (CA3 1951) (listing as “adequate justification[s]” for fee awards “fraud practiced on the Patent Office or vexatious or unjustified litigation”). Six years later, Congress amended the fee-shifting provision and recodified it as §285. Whereas §70 had specified that a district court could “in its discretion award reasonable attorney’s fees to the prevailing party,” the revised language of §285 (which remains in force today) provides that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” We have observed, in interpreting the damages provision of the Patent Act, that the addition of the phrase “exceptional cases” to §285 was “for purposes of clarification only.”[3] General Motors Corp. v. Devex Corp., 461 U. S. 648 , n. 8 (1983); see also id., at 652, n. 6. And the parties agree that the recodification did not substantively alter the meaning of the statute.[4] For three decades after the enactment of §285, courts applied it—as they had applied §70—in a discretionary manner, assessing various factors to determine whether a given case was sufficiently “exceptional” to warrant a fee award. See, e.g., True Temper Corp. v. CF&I Steel Corp., 601 F. 2d 495, 508–509 (CA10 1979); Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 452 F. 2d 579, 597 (CA7 1971); Siebring v. Hansen, 346 F. 2d 474, 480–481 (CA8 1965). In 1982, Congress created the Federal Circuit and vested it with exclusive appellate jurisdiction in patent cases. 28 U. S. C. §1295. In the two decades that followed, the Federal Circuit, like the regional circuits before it, instructed district courts to consider the totality of the circumstances when making fee determinations under §285. See, e.g., Rohm & Haas Co. v. Crystal Chemical Co., 736 F. 2d 688, 691 (1984) (“Cases decided under §285 have noted that ‘the substitution of the phrase “in exceptional cases” has not done away with the discretionary feature’ ”); Yamanouchi Pharmaceutical Co., Ltd. v. Danbury Pharmacal, Inc., 231 F. 3d 1339, 1347 (2000) (“In assessing whether a case qualifies as exceptional, the district court must look at the totality of the circumstances”). In 2005, however, the Federal Circuit abandoned that holistic, equitable approach in favor of a more rigid and mechanical formulation. In Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378 (2005), the court held that a case is “exceptional” under §285 only “when there has been some material inappropriate conduct related to the matter in litigation, such as willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11, or like infractions.” Id., at 1381. “Absent misconduct in conduct of the litigation or in securing the patent,” the Federal Circuit continued, fees “may be imposed against the patentee only if both (1) the litigation is brought in subjective bad faith, and (2) the litigation is objectively baseless.” Ibid. The Federal Circuit subsequently clarified that litigation is objectively baseless only if it is “so unreasonable that no reasonable litigant could believe it would succeed,” iLOR, LLC v. Google, Inc., 631 F. 3d 1372, 1378 (2011), and that litigation is brought in subjective bad faith only if the plaintiff “actually know[s]” that it is objectively baseless, id., at 1377.[5] Finally, Brooks Furniture held that because “[t]here is a presumption that the assertion of infringement of a duly granted patent is made in good faith[,] . . . the underlying improper conduct and the characterization of the case as exceptional must be established by clear and convincing evidence.” 393 F. 3d, at 1382. B The parties to this litigation are manufacturers of exercise equipment. The respondent, ICON Health & Fitness, Inc., owns U. S. Patent No. 6,019,710 (’710 patent), which discloses an elliptical exercise machine that allows for adjustments to fit the individual stride paths of users. ICON is a major manufacturer of exercise equipment, but it has never commercially sold the machine disclosed in the ’710 patent. The petitioner, Octane Fitness, LLC, also manufactures exercise equipment, including elliptical machines known as the Q45 and Q47. ICON sued Octane, alleging that the Q45 and Q47 infringed several claims of the ’710 patent. The District Court granted Octane’s motion for summary judgment, concluding that Octane’s machines did not infringe ICON’s patent. 2011 WL 2457914 (D Minn., June 17, 2011). Octane then moved for attorney’s fees under §285. Applying the Brooks Furniture standard, the District Court denied Octane’s motion. 2011 WL 3900975 (D Minn., Sept. 6, 2011). It determined that Octane could show neither that ICON’s claim was objectively baseless nor that ICON had brought it in subjective bad faith. As to objective baselessness, the District Court rejected Octane’s argument that the judgment of noninfringement “should have been a foregone conclusion to anyone who visually inspected” Octane’s machines. Id., *2. The court explained that although it had rejected ICON’s infringement arguments, they were neither “frivolous” nor “objectively baseless.” Id., *2–*3. The court also found no subjective bad faith on ICON’s part, dismissing as insufficient both “the fact that [ICON] is a bigger company which never commercialized the ’710 patent” and an e-mail exchange between two ICON sales executives, which Octane had offered as evidence that ICON had brought the infringement action “as a matter of commercial strategy.”[6] Id., *4. ICON appealed the judgment of noninfringement, and Octane cross-appealed the denial of attorney’s fees. The Federal Circuit affirmed both orders. 496 Fed. Appx. 57 (2012). In upholding the denial of attorney’s fees, it rejected Octane’s argument that the District Court had “applied an overly restrictive standard in refusing to find the case exceptional under §285.” Id., at 65. The Federal Circuit declined to “revisit the settled standard for exceptionality.” Ibid. We granted certiorari, 570 U. S. __ (2013), and now reverse. II The framework established by the Federal Circuit in Brooks Furniture is unduly rigid, and it impermissibly encumbers the statutory grant of discretion to district courts. A Our analysis begins and ends with the text of §285: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” This text is patently clear. It imposes one and only one constraint on district courts’ discretion to award attorney’s fees in patent litigation: The power is reserved for “exceptional” cases. The Patent Act does not define “exceptional,” so we construe it “ ‘in accordance with [its] ordinary meaning.’ ” Sebelius v. Cloer, 569 U. S. ___, ___ (2013) (slip op., at 6); see also Bilski v. Kappos, 561 U. S. 593 , ___ (2010) (slip op., at 6) (“In patent law, as in all statutory construction, ‘[u]nless otherwise defined, “words will be interpreted as taking their ordinary, contemporary, common meaning” ’ ”). In 1952, when Congress used the word in §285 (and today, for that matter), “[e]xceptional” meant “uncommon,” “rare,” or “not ordinary.” Webster’s New International Dictionary 889 (2d ed. 1934); see also 3 Oxford English Dictionary 374 (1933) (defining “exceptional” as “out of the ordinary course,” “unusual,” or “special”);Merriam-Webster’s Collegiate Dictionary 435 (11th ed. 2008) (defining “exceptional” as “rare”); Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 771 F. 2d 521, 526 (CADC 1985) (R. B. Ginsburg, J., joined by Scalia, J.) (interpreting the term “exceptional” in the Lanham Act’s identical fee-shifting provision, 15 U. S. C. §1117(a), to mean “uncommon” or “not run-of-the-mill”). We hold, then, that an “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances.[7] As in the comparable context of the Copyright Act, “ ‘[t]here is no precise rule or formula for making these determinations,’ but instead equitable discretion should be exercised ‘in light of the considerations we have identified.’ ” Fogerty v. Fantasy, Inc., 510 U. S. 517, 534 (1994) . B 1 The Federal Circuit’s formulation is overly rigid. Under the standard crafted in Brooks Furniture, a case is “exceptional” only if a district court either finds litigation-related misconduct of an independently sanctionable magnitude or determines that the litigation was both “brought in subjective bad faith” and “objectively baseless.” 393 F. 3d, at 1381. This formulation superimposes an inflexible framework onto statutory text that is inherently flexible. For one thing, the first category of cases in which the Federal Circuit allows fee awards—those involving litigation misconduct or certain other misconduct—appears to extend largely to independently sanctionable conduct. See ibid. (defining litigation-related misconduct to include “willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexa-tious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11, or like infractions”). But sanctionable conduct is not the appropriate benchmark. Under the standard announced today, a district court may award fees in the rare case in which a party’s unreasonable conduct—while not necessarily independently sanctionable—is nonetheless so “exceptional” as to justify an award of fees. The second category of cases in which the Federal Circuit allows fee awards is also too restrictive. In order for a case to fall within this second category, a district court must determine both that the litigation is objectively baseless and that the plaintiff brought it in subjective bad faith. But a case presenting either subjective bad faith or exceptionally meritless claims may sufficiently set itself apart from mine-run cases to warrant a fee award. Cf. Noxell, 771 F. 2d, at 526 (“[W]e think it fair to assume that Congress did not intend rigidly to limit recovery of fees by a [Lanham Act] defendant to the rare case in which a court finds that the plaintiff ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons’ . . . . Something less than ‘bad faith,’ we believe, suffices to mark a case as ‘exceptional’ ”). ICON argues that the dual requirement of “subjective bad faith” and “objective baselessness” follows from this Court’s decision in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49 (1993) (PRE), which involved an exception to the Noerr-Pennington doctrine of antitrust law. It does not. Under the Noerr-Pennington doctrine—established by Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961) , and Mine Workers v. Pennington, 381 U. S. 657 (1965) —defendants are immune from antitrust liability for engaging in conduct (including litigation) aimed at influencing decisionmaking by the government. PRE, 508 U. S., at 56. But under a “sham exception” to this doctrine, “activity ‘ostensibly directed toward influencing governmental action’ does not qualify for Noerr immunity if it ‘is a mere sham to cover . . . an attempt to interfere directly with the business relationships of a competitor.’ ” Id., at 51. In PRE, we held that to qualify as a “sham,” a “lawsuit must be objectively baseless” and must “concea[l] ‘an attempt to interfere directly with the business relationships of a competitor . . . .’ ” Id., at 60–61 (emphasis deleted). In other words, the plaintiff must have brought baseless claims in an attempt to thwart competition (i.e., in bad faith). In Brooks Furniture, the Federal Circuit imported the PRE standard into §285. See 393 F. 3d, at 1381. But the PRE standard finds no roots in the text of §285, and it makes little sense in the context of determining whether a case is so “exceptional” as to justify an award of attorney’s fees in patent litigation. We crafted the Noerr-Pennington doctrine—and carved out only a narrow exception for “sham” litigation—to avoid chilling the exercise of the First Amendment right to petition the government for the redress of grievances. See PRE, 508 U. S., at 56 (“Those who petition government for redress are generally immune from antitrust liability”). But to the extent that patent suits are similarly protected as acts of petitioning, it is not clear why the shifting of fees in an “exceptional” case would diminish that right. The threat of antitrust liability (and the attendant treble damages, 15 U. S. C. §15) far more significantly chills the exercise of the right to petition than does the mere shifting of attorney’s fees. In the Noerr-Pennington context, defendants seek immunity from a judicial declaration that their filing of a lawsuit was actually unlawful; here, they seek immunity from a far less onerous declaration that they should bear the costs of that lawsuit in exceptional cases. 2 We reject Brooks Furniture for another reason: It is so demanding that it would appear to render §285 largely superfluous. We have long recognized a common-law exception to the general “American rule” against fee-shifting—an exception, “inherent” in the “power [of] the courts” that applies for “ ‘willful disobedience of a court order’ ” or “when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . .’ ” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 –259 (1975). We have twice declined to construe fee-shifting provisions narrowly on the basis that doing so would render them superfluous, given the background exception to the American rule, see Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 419 (1978) ; Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400 , n. 4 (1968) (per curiam), and we again decline to do so here. 3 Finally, we reject the Federal Circuit’s requirement that patent litigants establish their entitlement to fees under §285 by “clear and convincing evidence,” Brooks Furniture, 393 F. 3d, at 1382. We have not interpreted comparable fee-shifting statutes to require proof of entitlement to fees by clear and convincing evidence. See, e.g., Fogerty, 510 U. S., at 519; Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 (1990) ; Pierce v. Underwood, 487 U. S. 552, 558 (1988) . And nothing in §285 justifies such a high standard of proof. Section 285 demands a simple discretionary inquiry; it imposes no specific evidentiary burden, much less such a high one. Indeed, patent-infringement litigation has always been governed by a preponderance of the evidence standard, see, e.g., Béné v. Jeantet, 129 U. S. 683, 688 (1889) , and that is the “standard generally applicable in civil actions,” because it “allows both parties to ‘share the risk of error in roughly equal fashion,’ ” Herman & MacLean v. Huddleston, 459 U. S. 375, 390 (1983) . * * * For the foregoing reasons, the judgment of the United States Court of Appeals for the Federal Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 * joins this opinion except as to footnotes 1–3. 2 This provision did “not contemplat[e] that the recovery of attorney’s fees [would] become an ordinary thing in patent suits . . . .” S. Rep. No. 79–1503, p. 2 (1946). 3 The Senate Report similarly explained that the new provision was “substantially the same as” §70, and that the “ ‘exceptional cases’ ” language was added simply to “expres[s] the intention of the [1946] statute as shown by its legislative history and as interpreted by the courts.” S. Rep. No. 82–1979, p. 30 (1952). 4 See Brief for Petitioner 35 (“[T]his amendment was not intended to create a stricter standard for fee awards, but instead was intended to clarify and endorse the already-existing statutory standard”); Brief for Respondent 17 (“When it enacted §285, as the historical notes to this provision make clear, Congress adopted the standards applied by courts interpreting that statute’s predecessor, §70 of the 1946 statute. Congress explained that §285 ‘is substantially the same as the corresponding provision in’ §70”). 5 In v. , 738 F. 3d 1302 (CA Fed 2013)—decided after our grant of certiorari but before we heard oral argument in this case—the Federal Circuit appeared to cut back on the “subjective bad faith” inquiry, holding that the language in was dictum and that “actual knowledge of baselessness is not required.” 738 F. 3d, at 1310. Rather, the court held, “a defendant need only prove reckless conduct to satisfy the subjective component of the §285 analysis,” , and courts may “dra[w] an inference of bad faith from circumstantial evidence thereof when a patentee pursues claims that are devoid of merit,” at 1311. Most importantly, the Federal Circuit stated that “[o]bjective baselessness alone can create a sufficient inference of bad faith to establish exceptionality under §285, unless the circumstances as a whole show a lack of recklessness on the patentee’s part.” , at 1314. Chief Judge Rader wrote a concurring opinion that sharply criticized , 738 F. 3d, at 1318–1320; the court, he said, “should have remained true to its original reading of” §285, at 1320. 6 One e-mail, sent from ICON’s Vice President of Global Sales to two employees, read: “ ‘We are suing Octane. Not only are we coming out with a greater product to go after them, but throwing a lawsuit on top of that.’ ” 2011 WL 3900975, *4. One of the recipients then forwarded that e-mail to a third party, along with the accompanying message: “ ‘Just clearing the way and making sure you guys have all your guns loaded!’ ” . More than a year later, that same employee sent ane-mail to the Vice President of Global Sales with the subject, “ ‘I heard we are suing Octane!’ ” The executive responded as follows: “ ‘Yes—old patent we had for a long time that was sitting on the shelf. They are just looking for royalties.’ ” The District Court wrote that “in the light most favorable to Octane, these remarks are stray comments by employees with no demonstrated connection to the lawsuit.” 7 In v. , , for example, we explained that in determining whether to award fees under a similar provision in the Copyright Act, district courts could consider a “nonexclusive” list of “factors,” including “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” , at 534, n. 19 (internal quotation marks omitted).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus OCTANE FITNESS, LLC v. ICON HEALTH & FITNESS, INC. certiorari to the united states court of appeals for the federal circuit No. 12–1184. Argued February 26, 2014—Decided April 29, 2014 The Patent Act’s fee-shifting provision authorizes district courts to award attorney’s fees to prevailing parties in “exceptional cases.” 35 U. S. C. §285. In Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381, the Federal Circuit defined an “exceptional case” as one which either involves “material inappropriate conduct” or is both “objectively baseless” and “brought in subjective bad faith.” Brooks Furniture also requires that parties establish the “exceptional” nature of a case by “clear and convincing evidence.” Id., at 1382. Respondent ICON Health & Fitness, Inc., sued petitioner Octane Fitness, LLC, for patent infringement. The District Court granted summary judgment to Octane. Octane then moved for attorney’s fees under §285. The District Court denied the motion under the Brooks Furniture framework, finding ICON’s claim to be neither objectively baseless nor brought in subjective bad faith. The Federal Circuit affirmed. Held: The Brooks Furniture framework is unduly rigid and impermissibly encumbers the statutory grant of discretion to district courts. . (a) Section 285 imposes one and only one constraint on district courts’ discretion to award attorney’s fees: The power is reserved for “exceptional” cases. Because the Patent Act does not define “exceptional,” the term is construed “in accordance with [its] ordinary meaning.” Sebelius v. Cloer, 569 U. S. ___, ___. In 1952, when Congress used the word in §285 (and today, for that matter), “[e]xceptional” meant “uncommon,” “rare,” or “not ordinary.” Webster’s New International Dictionary 889 (2d ed. 1934). An “exceptional” case, then, is simply one that stands out from others with re-spect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances. Cf. Fogerty v. Fantasy, Inc., 510 U.S. 517. . (b) The Brooks Furniture framework superimposes an inflexible framework onto statutory text that is inherently flexible. . (1) Brooks Furniture is too restrictive in defining the two categories of cases in which fee awards are allowed. The first category—cases involving litigation or certain other misconduct—appears to extend largely to independently sanctionable conduct. But that is not the appropriate benchmark. A district court may award fees in the rare case in which a party’s unreasonable, though not independently sanctionable, conduct is so “exceptional” as to justify an award. For litigation to fall within the second category, a district court must determine that the litigation is both objectively baseless and brought in subjective bad faith. But a case presenting either subjective bad faith or exceptionally meritless claims may sufficiently set itself apart from mine-run cases to be “exceptional.” The Federal Circuit imported this second category from Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, but that case’s standard finds no roots in §285’s text and makes little sense in the context of the exceptional-case determination. . (2) Brooks Furniture is so demanding that it would appear to render §285 largely superfluous. Because courts already possess the inherent power to award fees in cases involving misconduct or bad faith, see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258–259, this Court has declined to construe fee-shifting provisions narrowly so as to avoid rendering them superfluous. See, e.g., Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 419. . (3) Brooks Furniture’s requirement that proof of entitlement to fees be made by clear and convincing evidence is not justified by §285, which imposes no specific evidentiary burden. Nor has this Court interpreted comparable fee-shifting statutes to require such a burden of proof. See, e.g., Fogerty, 510 U. S, at 519. P. 11. 496 Fed. Appx. 57, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ., joined, and in which Scalia, J., joined except as to footnotes 1–3.

Section 285 of the Patent Act authorizes a district court to award attorney's fees in patent litigation only in two limited circumstances: (1) when there has been some material inappropriate conduct related to the matter in litigation, such as willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11, or like infractions. In Brooks Furniture Mfg., Inc. v. Dutailier Int.l, Inc., 393 F. 3d 1378, the Court of Appeals held that a case is exceptional under §285 only when the litigation is both "frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) andobjectively baseless." The court also held that, although it had rejected respondent ICON Health & Fitness, Inc. (hereafter respondent) infringement arguments, they were neither so frivolous nor so objective as to be subjectively baseless, and that therefore no subjective bad faith on respondent's part had been shown. It also rejected respondent's argument that the noninfringement judgment should have been a foregone conclusion to anyone who visually inspected petitioner's exercise machines, and found no objective baselessness on respondent. On cross-appeal, the Federal Circuit affirmed the denial of attorney-s fees under the standard set forth in §285, but declined to find an exception to the restrictive, overly restrictive, and overly restrictive standard of the court-applied standard. Held: 1. The framework established by the Federal Circuits for the decision of cases in exceptional cases is unduly rigid, and impermissibly encumbers the statutory grant of discretion to district courts. . (a) An exceptional case is simply one that stands out from others with respect to the substantive strength of a party's litigating position or the unreasonable manner in which the case was litigated. To the extent that patent suits are similarly protected as acts of petitioning, it is not clear why the shifting of fees in an exceptional case would diminish that right. The threat of antitrust liability and the attendant treble damages far more significantly chills the exercise of the right to petition than does the mere shifting of attorney’s fees. Here, defendants seek immunity from a judicial declaration that their filing of a lawsuit was actually unlawful; here, they seek immunity from a far less onerous declaration that they should bear the costs of that lawsuit in exceptional cases. Pp. 456 U.S. 623-624. (b) Nothing in § 285 justifies such a high standard of proof. Section 285 demands a simple discretionary inquiry; it imposes no specific evidentiary burden, much less a high one. Indeed, patent-infringements litigation has always been governed by a preponderance of the evidence standard, which is the standard generally applicable in civil actions, and is thestandard generally applicable to civil actions. See, e.g., Herman & MacLean v. Huddleston, 459 U. S. 375, 390 (1983)). And nothing in §285 justifies a high, discretionary, and discretionary, proof of entitlement to fees by clear and convincing evidence. Nothing in §§ 285 justifies a requirement that patent-affringement litigation establish entitlement to fees by evidence.. 2. The Brooks Furnitures framework is not so demanding that it would appear to render §285 largely superfluous. Cf. Alysa v. Park Service Co.,; Alysa, supra, at 1334... 3. Section 285 does not so construe patent entitlement to patent fees as so superfluous that patent litigants so establish their entitlement entitlement to such fees by a high and convincing standard of evidence that they establish entitlement by only stating that they have no demonstrated connection to the lawsuit. There is no merit to the requirement that § 285 justify such a requirement, and nothing in the text of § 285 does justify it. Nor does anything in either §285 or comparable fee-shifting statutes require proof of the entitlement of patent entitlement. And there is nothing in either provision of §285 to require proof that patent lawsuits are so exceptional as to justify an award of attorney's fees for patent litigation. Even if § 285 were so demanding, it would be so curt as to render the entire statutory framework superfluous on the basis of so narrowly curtailed provisions of the American rule forbidding patent fraud. A common-law exception to that general "American rule," the exception, in the traditional sense, applies only to independently sanctionable conduct. Moreover, nothing in comparable fee shifting statutes to require proof of that high standard justifies the high, arbitrary, and arbitrary standard. This Court has not interpreted § 285 to require that proof be given to patent plaintiffs by clear, convincing evidence, since nothing in that section justifies such

2013_12-8561

https://www.oyez.org/cases/2013/12-8561

. This case presents the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed. The relevant statutory provisions are set forth at 18 U. S. C. §2259. Enacted as a component of the Violence Against Women Act of 1994, §2259 requires district courts to award restitution for certain federal criminal offenses, including child-pornography possession. Petitioner Doyle Randall Paroline pleaded guilty to such an offense. He admitted to possessing between 150 and 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman, who goes by the pseudonym “Amy” for this litigation. The question is what causal relationship must be established between the defendant’s conduct and a victim’s losses for purposes of determining the right to, and the amount of, restitution under §2259. I Three decades ago, this Court observed that “the exploitive use of children in the production of pornography has become a serious national problem.” New York v. Ferber, 458 U. S. 747, 749 (1982) . The demand for child pornography harms children in part because it drives production, which involves child abuse. The harms caused by child pornography, however, are still more extensive because child pornography is “a permanent record” of the depicted child’s abuse, and “the harm to the child is exacerbated by [its] circulation.” Id., at 759. Because child pornography is now traded with ease on the Internet, “the number of still images and videos memorializing the sexual assault and other sexual exploitation of children, many very young in age, has grown exponentially.” United States Sentencing Comm’n, P. Saris et al., FederalChild Pornography Offenses 3 (2012) (hereinafter Sentencing Comm’n Report). One person whose story illustrates the devastating harm caused by child pornography is the respondent victim in this case. When she was eight and nine years old, she was sexually abused by her uncle in order to produce child pornography. Her uncle was prosecuted, required to pay about $6,000 in restitution, and sentenced to a lengthy prison term. The victim underwent an initial course of therapy beginning in 1998 and continuing into 1999. By the end of this period, her therapist’s notes reported that she was “ ‘back to normal’ ”; her involvement in dance and other age-appropriate activities, and the support of her family, justified an optimistic assessment. App. 70–71. Her functioning appeared to decline in her teenage years, however; and a major blow to her recovery came when, at the age of 17, she learned that images of her abuse were being trafficked on the Internet. Id., at 71. The digital images were available nationwide and no doubt worldwide. Though the exact scale of the trade in her images is unknown, the possessors to date easily number in the thousands. The knowledge that her images were circulated far and wide renewed the victim’s trauma and made it difficult for her to recover from her abuse. As she explained in a victim impact statement submitted to the District Court in this case: “Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them—at me—when I was just a little girl being abused for the camera. I did not choose to be there, but now I am there forever in pictures that people are using to do sick things. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle. . . . My life and my feelings are worse now because the crime has never really stopped and will never really stop. . . . It’s like I am being abused over and over and over again.” Id., at 60–61. The victim says in her statement that her fear and trauma make it difficult for her to trust others or to feel that she has control over what happens to her. Id., at 63. The full extent of this victim’s suffering is hard to grasp. Her abuser took away her childhood, her self-conception of her innocence, and her freedom from the kind of nightmares and memories that most others will never know. These crimes were compounded by the distribution of images of her abuser’s horrific acts, which meant the wrongs inflicted upon her were in effect repeated; for she knew her humiliation and hurt were and would be renewed into the future as an ever-increasing number of wrongdoers witnessed the crimes committed against her. Petitioner Paroline is one of the individuals who possessed this victim’s images. In 2009, he pleaded guilty in federal court to one count of possession of material involving the sexual exploitation of children in violation of 18 U. S. C. §2252. 672 F. Supp. 2d 781, 783 (ED Tex. 2009). Paroline admitted to knowing possession of between 150 and 300 images of child pornography, two of which depicted the respondent victim. Ibid. The victim sought restitution under §2259, asking for close to $3.4 million, consistingof nearly $3 million in lost income and about $500,000in future treatment and counseling costs. App. 52, 104. She also sought attorney’s fees and costs. 672 F. Supp. 2d, at 783. The parties submitted competing expert reports. They stipulated that the victim did not know who Paroline was and that none of her claimed losses flowed from any specific knowledge about him or his offense conduct. Id., at 792, and n. 11; App. 230. After briefing and hearings, the District Court declined to award restitution. 672 F. Supp. 2d, at 793. The District Court observed that “everyone involved with child pornography—from the abusers and producers to the end-users and possessors—contribute[s] to [the victim’s] ongoing harm.” Id., at 792. But it concluded that the Government had the burden of proving the amount of the victim’s losses “directly produced by Paroline that would not have occurred without his possession of her images.” Id., at 791. The District Court found that, under this standard, the Government had failed to meet its burden of proving what losses, if any, were proximately caused by Paroline’s offense. It thus held that “an award of restitution is not appropriate in this case.” Id., at 793. The victim sought a writ of mandamus, asking the United States Court of Appeals for the Fifth Circuit to direct the District Court to order Paroline to pay restitution in the amount requested. In re Amy, 591 F. 3d 792, 793 (2009). The Court of Appeals denied relief. Id., at 795. The victim sought rehearing. Her rehearing request was granted, as was her petition for a writ of mandamus. In re Amy Unknown, 636 F. 3d 190, 201 (2011). The Fifth Circuit reheard the case en banc along with another case, in which the defendant, Michael Wright, had raised similar issues in appealing an order of restitution under §2259, see United States v. Wright, 639 F. 3d 679, 681 (2011) (per curiam). As relevant, the Court of Appeals set out to determine the level of proof required to award restitution to victims in cases like this. It held that §2259 did not limit restitution to losses proximately caused by the defendant, and each defendant who possessed the victim’s images should be made liable for the victim’s entire losses from the trade in her images, even though other offenders played a role in causing those losses. In re Amy Unknown, 701 F. 3d 749, 772–774 (2012) (en banc). Paroline sought review here. Certiorari was granted to resolve a conflict in the Courts of Appeals over the proper causation inquiry for purposes of determining the entitlement to and amount of restitution under §2259. 570 U. S. ___ (2013). For the reasons set forth, the decision of the Court of Appeals is vacated. II Title 18 U. S. C. §2259(a) provides that a district court “shall order restitution for any offense” under Chapter 110 of Title 18, which covers a number of offenses involving the sexual exploitation of children and child pornography in particular. Paroline was convicted of knowingly possessing child pornography under §2252, a Chapter 110 offense. Section 2259 states a broad restitutionary purpose: It requires district courts to order defendants “to pay the victim . . . the full amount of the victim’s losses as determined by the court,” §2259(b)(1), and expressly states that “[t]he issuance of a restitution order under this section is mandatory,” §2259(b)(4)(A). Section 2259(b)(2) provides that “[a]n order of restitution under this section shall be issued and enforced in accordance with section 3664,” which in turn provides in relevant part that “[t]he burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government,” §3664(e). The threshold question the Court faces is whether §2259 limits restitution to those losses proximately caused by the defendant’s offense conduct. The Fifth Circuit held that it does not, contrary to the holdings of other Courts of Appeals to have addressed the question. Compare, e.g., 701 F. 3d, at 752 (no general proximate-cause requirement applies under §2259), with United States v. Rogers, 714 F. 3d 82, 89 (CA1 2013) (general proximate-cause requirement applies under §2259); United States v. Benoit, 713 F. 3d 1, 20 (CA10 2013) (same); United States v. Fast, 709 F. 3d 712, 721–722 (CA8 2013) (same); United States v. Laraneta, 700 F. 3d 983, 989–990 (CA7 2012) (same); United States v. Burgess, 684 F. 3d 445, 456–457 (CA4 2012) (same); United States v. Evers, 669 F. 3d 645, 659 (CA6 2012) (same); United States v. Aumais, 656 F. 3d 147, 153 (CA2 2011) (same); United States v. Kennedy, 643 F. 3d 1251, 1261 (CA9 2011) (same); United States v. Monzel, 641 F. 3d 528, 535 (CADC 2011) (same); United States v. McDaniel, 631 F. 3d 1204, 1208–1209 (CA11 2011) (same). As a general matter, to say one event proximately caused another is a way of making two separate but related assertions. First, it means the former event caused the latter. This is known as actual cause or cause in fact. The concept of actual cause “is not a metaphysical one but an ordinary, matter-of-fact inquiry into the existence . . . of a causal relation as laypeople would view it.” 4 F. Harper, F. James, & O. Gray, Torts §20.2, p. 100 (3d ed. 2007). Every event has many causes, however, see ibid., and only some of them are proximate, as the law uses that term. So to say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result. The idea of proximate cause, as distinct from actual cause or cause in fact, defies easy summary. It is “a flexible concept,” Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. 639, 654 (2008) , that generally “refers to the basic requirement that . . . there must be ‘some direct relation between the injury asserted and the injurious conduct alleged,’ ” CSX Transp., Inc. v. McBride, 564 U. S. ___, ___ (2011) (Roberts, C. J., dissenting) (slip op., at 3) (quoting Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268 (1992) ). The concept of proximate causation is applicable in both criminal and tort law, and the analysis is parallel in many instances. 1 W. LaFave, Substantive Criminal Law §6.4(c), p. 471 (2d ed. 2003) (hereinafter LaFave). Proximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct. See, e.g., ibid.; 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29, p. 493 (2005) (hereinafter Restatement). A requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity. Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830 –839 (1996). All parties agree §2259 imposes some causation requirement. The statute defines a victim as “the individual harmed as a result of a commission of a crime under this chapter.” §2259(c). The words “as a result of” plainly suggest causation. See Pacific Operators Offshore, LLP v. Valladolid, 565 U. S. ___, ___ (2012) (slip op., at 13); see also Burrage v. United States, 571 U. S. ___, ___ (2014) (slip op., at 5). And a straightforward reading of §2259(c) indicates that the term “a crime” refers to the offense of conviction. Cf. Hughey v. United States, 495 U. S. 411, 416 (1990) . So if the defendant’s offense conduct did not cause harm to an individual, that individual is by definition not a “victim” entitled to restitution under §2259. As noted above, §2259 requires a court to order restitution for “the full amount of the victim’s losses,” §2259(b)(1), which the statute defines to include “any costs incurred by the victim” for six enumerated categories of expense, §2259(b)(3). The reference to “costs incurred by the victim” is most naturally understood as costs stemming from the source that qualifies an individual as a “victim” in the first place—namely, ones arising “as a result of” the offense. Thus, as is typically the case with criminal restitution, §2259 is intended to compensate victims for losses caused by the offense of conviction. See id., at 416. This is an important point, for it means the central concern of the causal inquiry must be the conduct of the particular defendant from whom restitution is sought. But there is a further question whether restitution under §2259 is limited to losses proximately caused by the offense. As noted, a requirement of proximate cause is more restrictive than a requirement of factual cause alone. Even if §2259 made no express reference to proximate causation, the Court might well hold that a showing of proximate cause was required. Proximate cause is a standard aspect of causation in criminal law and the law of torts. See 1 LaFave §6.4(a), at 464–466; W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §41, p. 263 (5th ed. 1984) (hereinafter Prosser and Keeton). Given proximate cause’s traditional role in causation analysis, this Court has more than once found a proximate-cause requirement built into a statute that did not expressly impose one. See Holmes, supra, at 265–268; Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519 –536 (1983); see also CSX Transp., Inc., supra, at ___ (Roberts, C. J., dissenting) (slip op., at 4) (“We have applied the standard requirement of proximate cause to actions under federal statutes where the text did not expressly provide for it”); Lexmark Int’l, Inc. v. Static Control Components, Inc., ante, at 13–14. Here, however, the interpretive task is easier, for the requirement of proximate cause is in the statute’s text. The statute enumerates six categories of covered losses. §2259(b)(3). These include certain medical services, §2259(b)(3)(A); physical and occupational therapy, §2259(b)(3)(B); transportation, temporary housing, and child care, §2259(b)(3)(C); lost income, §2259(b)(3)(D); attorney’s fees and costs, §2259(b)(3)(E); and a final catchall category for “any other losses suffered by the victim as a proximate result of the offense,” §2259(b)(3)(F). The victim argues that because the “proximate result” language appears only in the final, catchall category of losses set forth at §2259(b)(3)(F), the statute has noproximate-cause requirement for losses falling within the prior enumerated categories. She justifies this reading of §2259(b) in part on the grammatical rule of the last antecedent, “according to which a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Barnhart v. Thomas, 540 U. S. 20, 26 (2003) . But that rule is “not an absolute and can assuredly be overcome by other indicia of meaning.” Ibid. The Court has not applied it in a mechanical way where it would require accepting “unlikely premises.” United States v. Hayes, 555 U. S. 415, 425 (2009) . Other canons of statutory construction, moreover, work against the reading the victim suggests. “When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.” Porto Rico Railway, Light & Power Co. v. Mor, 253 U. S. 345, 348 (1920) . Furthermore, “[i]t is . . . a familiar canon of statutory construction that [catchall] clauses are to be read as bringing within a statute categories similar in type to those specifically enumerated.” Federal Maritime Comm’n v. Seatrain Lines, Inc., 411 U. S. 726, 734 (1973) . Here, §2259(b)(3)(F) defines a broad, final category of “other losses suffered . . . as a proximate result of the offense.” That category is most naturally understood as a summary of the type of losses covered—i.e., losses suffered as a proximate result of the offense. The victim says that if Congress had wanted to limit the losses recoverable under §2259 to those proximately caused by the offense, it could have written the statute the same way it wrote §2327, which provides for restitution to victims of telemarketing fraud. Section 2327, which is written and structured much like §2259, simply defines the term “full amount of the victim’s losses” as “all losses suffered by the victim as a proximate result of the offense.” §2327(b)(3). In essence the victim argues that the first five categories of losses enumerated in §2259(b)(3) would be superfluous if all were governed by a proximate-cause requirement. That, however, is unpersuasive. The first five categories provide guidance to district courts as to the specific types of losses Congress thought would often be the proximate result of a Chapter 110 offense and could as a general matter be included in an award of restitution. Reading the statute to impose a general proximate-cause limitation accords with common sense. As noted above, proximate cause forecloses liability in situations where the causal link between conduct and result is so attenuated that the so-called consequence is more akin to mere fortuity. For example, suppose the traumatized victim of a Chapter 110 offender needed therapy and had a car accident on the way to her therapist’s office. The resulting medical costs, in a literal sense, would be a factual result of the offense. But it would be strange indeed to make a defendant pay restitution for these costs. The victim herself concedes Congress did not intend costs like these to be recoverable under §2259. Brief for Respondent Amy 45. But she claims that it is unnecessary to “read . . . into” §2259 a proximate-cause limitation in order to exclude costs of that sort. Ibid. She says the statute “contextually and inferentially require[s] a nexus for why” the losses were sustained—i.e., a sufficient connection to child pornography. Id., at 46. The victim may be right that the concept of proximate cause is not necessary to impose sensible limitations on restitution for remote consequences. But one very effective way, and perhaps the most obvious way, of excluding costs like those arising from the hypothetical car accident described above would be to incorporate a proximate-cause limitation into the statute. Congress did so, and for reasons given above the proximate-cause requirement applies to all the losses described in §2259. Restitution is therefore proper under §2259 only to the extent the defendant’s offense proximately caused a victim’s losses. III There remains the difficult question of how to apply the statute’s causation requirements in this case. The problem stems from the somewhat atypical causal process underlying the losses the victim claims here. It is perhaps simple enough for the victim to prove the aggregate losses, including the costs of psychiatric treatment and lost income, that stem from the ongoing traffic in her images as a whole. (Complications may arise in disaggregating losses sustained as a result of the initial physical abuse, but those questions may be set aside for present purposes.) These losses may be called, for convenience’s sake, a victim’s “general losses.” The difficulty is in determining the “full amount” of those general losses, if any, that are the proximate result of the offense conduct of a particular defendant who is one of thousands who have possessed and will in the future possess the victim’s images but who has no other connection to the victim. In determining the amount of general losses a defendant must pay under §2259 the ultimate question is how much of these losses were the “proximate result,” §2259(b)(3)(F), of that individual’s offense. But the most difficult aspect of this inquiry concerns the threshold requirement of causation in fact. To be sure, the requirement of proximate causation, as distinct from mere causation in fact, would prevent holding any possessor liable for losses caused in only a remote sense. But the victim’s costs of treatment and lost income resulting from the trauma of knowing that images of her abuse are being viewed over and over are direct and foreseeable results of child-pornography crimes, including possession, assuming the prerequisite of factual causation is satisfied. The primary problem, then, is the proper standard of causation in fact. A The traditional way to prove that one event was a fac-tual cause of another is to show that the latter would not have occurred “but for” the former. This approach is a familiar part of our legal tradition, see 1 LaFave §6.4(b), at 467–468; Prosser and Keeton §41, at 266, and no party disputes that a showing of but-for causation would satisfy §2259’s factual-causation requirement. Sometimes that showing could be made with little difficulty. For example, but-for causation could be shown with ease in many cases involving producers of child pornography, see §2251(a); parents who permit their children to be used for child-pornography production, see §2251(b); individuals who sell children for such purposes, see §2251A; or the initial distributor of the pornographic images of a child, see §2252. In this case, however, a showing of but-for causation cannot be made. The District Court found that the Government failed to prove specific losses caused by Paroline in a but-for sense and recognized that it would be “incredibly difficult” to do so in a case like this. 672 F. Supp. 2d, at 791–793. That finding has a solid foundation in the record, and it is all but unchallenged in this Court. See Brief for Respondent Amy 63; Brief for United States 19, 25. But see Supp. Brief for United States 8–10. From the victim’s perspective, Paroline was just one of thousands of anonymous possessors. To be sure, the victim’s precise degree of trauma likely bears a relation to the total number of offenders; it would probably be less if only 10 rather than thousands had seen her images. But it is not possible to prove that her losses would be less (and by how much) but for one possessor’s individual role in the large, loosely connected network through which her images circulate. See Sentencing Comm’n Report, at ii, xx. Even without Paroline’s offense, thousands would have viewed and would in the future view the victim’s images, so it cannot be shown that her trauma and attendant losses would have been any different but for Paroline’s offense. That is especially so given the parties’ stipulation that the victim had no knowledge of Paroline. See supra, at 4. Recognizing that losses cannot be substantiated under a but-for approach where the defendant is an anonymous possessor of images in wide circulation on the Internet, the victim and the Government urge the Court to read §2259 to require a less restrictive causation standard, at least in this and similar child-pornography cases. They are correct to note that courts have departed from the but-for standard where circumstances warrant, especially where the combined conduct of multiple wrongdoers produces a bad outcome. See Burrage, 571 U. S., at ___ (slip op., at 10) (acknowledging “the undoubted reality that courts have not always required strict but-for causality, even where criminal liability is at issue”). The victim and the Government look to the literature on criminal and tort law for alternatives to the but-for test. The Court has noted that the “most common” exception to the but-for causation requirement is applied where “multiple sufficient causes independently . . . produce a result,” ibid.; see also 1 LaFave §6.4(b), at 467–469; 1 Restatement §27, at 376. This exception is an ill fit here, as all parties seem to recognize. Paroline’s possession of two images of the victim was surely not sufficient to cause her entire losses from the ongoing trade in her images. Nor is there a practical way to isolate some subset of the victim’s general losses that Paroline’s conduct alone would have been sufficient to cause. See Brief for United States 26, n. 11. Understandably, the victim and the Government thus concentrate on a handful of less demanding causation tests endorsed by authorities on tort law. One prominent treatise suggests that “[w]hen the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, and application of the but-for rule to them individually would absolve all of them, the conduct of each is a cause in fact of the event.” Prosser and Keeton §41, at 268. The Restatement adopts a similar exception for “[m]ultiple sufficient causal sets.” 1 Restatement §27, Comment f, at 380–381. This is where a wrongdoer’s conduct, though alone “insufficient . . . to cause the plaintiff’s harm,” is, “when combined with conduct by other persons,” “more than sufficient to cause the harm.” Ibid. The Restatement offers as an example a case in which three people independently but simultaneously lean on a car, creating enough combined force to roll it off a cliff. Ibid. Even if each exerted too little force to move the car, and the force exerted by any two was sufficient to the move the car, each individual is a factual cause of the car’s destruction. Ibid. The Government argues that these authorities “provide ample support for an ‘aggregate’ causation theory,” Brief for United States 18, and that such a theory would best effectuate congressional intent in cases like this, id., at 18–19. The victim says much the same. Brief for Respondent Amy 42–43. These alternative causal tests are a kind of legal fiction or construct. If the conduct of a wrongdoer is neither necessary nor sufficient to produce an outcome, that conduct cannot in a strict sense be said to have caused the outcome. Nonetheless, tort law teaches that alternative and less demanding causal standards are necessary in certain circumstances to vindicate the law’s purposes. It would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm. And it would be nonsensical to adopt a rule whereby individuals hurt by the combined wrongful acts of many (and thus in many instances hurt more badly than otherwise) would haveno redress, whereas individuals hurt by the acts of one person alone would have a remedy. Those are the prin-ciples that underlie the various aggregate causation tests the victim and the Government cite, and they are sound principles. These alternative causal standards, though salutary when applied in a judicious manner, also can be taken too far. That is illustrated by the victim’s suggested approach to applying §2259 in cases like this. The victim says that under the strict logic of these alternative causal tests, each possessor of her images is a part of a causal set sufficient to produce her ongoing trauma, so each possessor should be treated as a cause in fact of all the trauma and all the attendant losses incurred as a result of the entire ongoing traffic in her images. Id., at 43. And she argues that if this premise is accepted the further requirement of proximate causation poses no barrier, for she seeks restitution only for those losses that are the direct and foreseeable result of child-pornography offenses. Because the statute requires restitution for the “full amount of the victim’s losses,” including “any . . . losses suffered by the victim as a proximate result of the offense,” §2259(b), she argues that restitution is required for the entire aggregately caused amount. The striking outcome of this reasoning—that each possessor of the victim’s images would bear the consequences of the acts of the many thousands who possessed those images—illustrates why the Court has been reluctant to adopt aggregate causation logic in an incautious manner, especially in interpreting criminal statutes where there is no language expressly suggesting Congress intended that approach. See Burrage, 571 U. S., at ___ (slip op., at 11–12). Even if one were to refer just to the law of torts, it would be a major step to say there is a sufficient causal link between the injury and the wrong so that all the victim’s general losses were “suffered . . . as a proximate result of [Paroline’s] offense,” §2259(b)(3)(F). And there is special reason not to do so in the context of criminal restitution. Aside from the manifest procedural differences between criminal sentencing and civil tort lawsuits, restitution serves purposes that differ from (though they overlap with) the purposes of tort law. See, e.g., Kelly v. Robinson, 479 U. S. 36 , n. 10 (1986) (noting that restitution is, inter alia, “an effective rehabilitative penalty”). Legal fictions developed in the law of torts cannot be imported into criminal restitution and applied to their utmost limits without due consideration of these differences. Contrary to the victim’s suggestion, this is not akin to a case in which a “gang of ruffians” collectively beats a person, or in which a woman is “gang raped by five men on one night or by five men on five sequential nights.” Brief for Respondent Amy 55. First, this case does not involve a set of wrongdoers acting in concert, see Prosser and Keeton §52, at 346 (discussing full liability for a joint enter-prise); for Paroline had no contact with the overwhelming majority of the offenders for whose actions the victim would hold him accountable. Second, adopting the victim’s approach would make an individual possessor liable for the combined consequences of the acts of not just 2, 5, or even 100 independently acting offenders; but instead, a number that may reach into the tens of thousands. See Brief for Respondent Amy 65. It is unclear whether it could ever be sensible to embrace the fiction that this victim’s entire losses were the “proximate result,” §2259(b)(3)(F), of a single possessor’s offense. Paroline’s contribution to the causal process underlying the victim’s losses was very minor, both compared to the combined acts of all other relevant offenders, and in comparison to the contributions of other individual offenders, particularly distributors (who may have caused hundreds or thousands of further viewings) and the initial producer of the child pornography. See 1 Restatement §36, and Comment a, at 597–598 (recognizing a rule excluding from liability individuals whose contribution to a causal set that factually caused the outcome “pales by comparison to the other contributions to that causal set”). But see id., §27, Reporters’ Note, Comment i, at 395 (“The conclusion that none of” two dozen small contributions to a sufficient causal set was a cause of the outcome “is obviously untenable”). Congress gave no indication that it intended its statute to be applied in the expansive manner the victim suggests, a manner contrary to the bedrock principle that restitution should reflect the consequences of the defendant’s own conduct, see Hughey, 495 U. S., at 416, not the conduct of thousands of geographically and temporally distant offenders acting independently, and with whom the defendant had no contact. The victim argues that holding each possessor liable for her entire losses would be fair and practical, in part because offenders may seek contribution from one another. Brief for Respondent Amy 58. If that were so, it might mitigate to some degree the concerns her approach presents. But there is scant authority for her contention that offenders convicted in different proceedings in different jurisdictions and ordered to pay restitution to the same victim may seek contribution from one another. There is no general federal right to contribution. Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77 –97 (1981). Nor does the victim point to any clear statutory basis for a right to contribution in these circumstances. She thus suggests that this Court should imply a cause of action. Brief for Respondent Amy 58. But that is a rare step in any circumstance. See, e.g., Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148 –165 (2008); Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U. S. 286, 291 (1993) (noting that this Court’s precedents “teach that the creation of new rights ought to be left to legislatures, not courts”). And it would do little to address the practical problems offenders would face in seeking contribution in any event, see Brief for United States 45–46, problems with which the victim fails to grapple. The reality is that the victim’s suggested approach would amount to holding each possessor of her images liable for the conduct of thousands of other independently acting possessors and distributors, with no legal or practical avenue for seeking contribution. That approach is so severe it might raise questions under the Excessive Fines Clause of the Eighth Amendment. To be sure, this Court has said that “the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.” Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 268 (1989) . But while restitution under §2259 is paid to a victim, it is imposed by the Government “at the culmination of a criminal proceeding and requires conviction of an underlying” crime, United States v. Bajakajian, 524 U. S. 321, 328 (1998) . Thus, despite the differences between restitution and a traditional fine, restitution still implicates “the prosecutorial powers of government,” Browning-Ferris, supra, at 275. The primary goal of restitution is remedial or compensatory, cf. Bajakajian, supra, at 329, but it also serves punitive purposes, see Pasquantino v. United States, 544 U. S. 349, 365 (2005) (“The purpose of awarding restitution” under 18 U. S. C. §3663A “is . . . to mete out appropriate criminal punishment”); Kelly, 479 U. S., at 49, n. 10. That may be “sufficient to bring [it] within the purview of the Excessive Fines Clause,” Bajakajian, supra, at 329, n. 4. And there is a real question whether holding a single possessor liable for millions of dollars in losses collectively caused by thousands of independent actors might be excessive and disproportionate in these circumstances. These concerns offer further reason not to interpret the statute the way the victim suggests. B The contention that the victim’s entire losses from the ongoing trade in her images were “suffered . . . as a proximate result” of Paroline’s offense for purposes of §2259 must be rejected. But that does not mean the broader principles underlying the aggregate causation theories the Government and the victim cite are irrelevant to determining the proper outcome in cases like this. The cause of the victim’s general losses is the trade in her images. And Paroline is a part of that cause, for he is one of those who viewed her images. While it is not possible to identify a discrete, readily definable incremental loss he caused, it is indisputable that he was a part of the overall phenomenon that caused her general losses. Just as it undermines the purposes of tort law to turn away plaintiffs harmed by several wrongdoers, it would undermine the remedial and penological purposes of §2259 to turn away victims in cases like this. With respect to the statute’s remedial purpose, there can be no question that it would produce anomalous results to say that no restitution is appropriate in these circumstances. It is common ground that the victim suffers continuing and grievous harm as a result of her knowledge that a large, indeterminate number of individuals have viewed and will in the future view images of the sexual abuse she endured. Brief for Petitioner 50; Brief for Respondent Wright 4; Brief for United States 23; Brief for Respondent Amy 60. Harms of this sort are a major reason why child pornography is outlawed. See Ferber, 458 U. S., at 759. The unlawful conduct of everyone who reproduces, distributes, or possesses the images of the victim’s abuse—including Paroline—plays a part in sustaining and aggravating this tragedy. And there can be no doubt Congress wanted victims to receive restitution for harms like this. The law makes restitution “mandatory,” §2259(b)(4), for child-pornography offenses under Chapter 110, language that indicates Congress’ clear intent that victims of child pornography be compensated by the perpetrators who contributed to their anguish. It would undermine this intent to apply the statute in a way that would render it a dead letter in child-pornography prosecutions of this type. Denying restitution in cases like this would also be at odds with the penological purposes of §2259’s mandatory restitution scheme. In a sense, every viewing of child pornography is a repetition of the victim’s abuse. One reason to make restitution mandatory for crimes like this is to impress upon offenders that their conduct produces concrete and devastating harms for real, identifiable victims. See Kelly, supra, at 49, n. 10 (“Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused”). It would be inconsistent with this purpose to apply the statute in a way that leaves offenders with the mistaken impression that child-pornography possession (at least where the images are in wide circulation) is a victimless crime. If the statute by its terms required a showing of strict but-for causation, these purposes would be beside the point. But the text of the statute is not so limited. Although Congress limited restitution to losses that are the “proximate result” of the defendant’s offense, such unelaborated causal language by no means requires but-for causation by its terms. See Burrage, 571 U. S., at ___ (slip op., at 8) (courts need not read phrases like “results from” to require but-for causality where there is “textual or contextual” reason to conclude otherwise). As the authorities the Government and the victim cite show, the availability of alternative causal standards where circumstances warrant is, no less than the but-for test itself as a default, part of the background legal tradition against which Congress has legislated, cf. id., at ___ (slip op., at 10). It would be unacceptable to adopt a causal standard so strict that it would undermine congressional intent where neither the plain text of the statute nor legal tradition demands such an approach. In this special context, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims. There remains the question of how district courts should go about determining the proper amount of restitution. At a general level of abstraction, a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses. This cannot be a precise mathematical inquiry and involves the use of discretion and sound judgment. But that is neither unusual nor novel, either in the wider context of criminal sentencing or in the more specific domain of restitution. It is well recognized that district courts by necessity “exercise . . . discretion in fashioning a restitution order.” §3664(a). Indeed, a district court is expressly authorized to conduct a similar inquiry where multiple defendants who have “contributed to the loss of a victim” appear before it. §3664(h). In that case it may “apportion liability among the defendants to reflect the level of contribution to the victim’s loss . . . of each defendant.” Ibid. Assessing an individual defendant’s role in the causal process behind a child-pornography victim’s losses does not involve a substantially different or greater exercise of discretion. There are a variety of factors district courts might consider in determining a proper amount of restitution, and it is neither necessary nor appropriate to prescribe a precise algorithm for determining the proper restitution amount at this point in the law’s development. Doing so would unduly constrain the decisionmakers closest to the facts of any given case. But district courts might, as a starting point, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images (excluding, of course, any remote losses like the hypothetical car accident described above, see supra, at 10), then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses. These could include the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role. See Brief for United States 49. These factors need not be converted into a rigid formula, especially if doing so would result in trivial restitution orders. They should rather serve as rough guideposts for determining an amount that fits the offense. The resulting amount fixed by the court would be deemed the amount of the victim’s general losses that were the “proximate result of the offense” for purposes of §2259, and thus the “full amount” of such losses that should be awarded. The court could then set an appropriate payment schedule in consideration of the defendant’s financial means. See §3664(f)(2). The victim says this approach is untenable because her losses are “indivisible” in the sense that term is used by tort law, i.e., that there is no “reasonable basis for the factfinder to determine . . . the amount of damages separately caused by” any one offender’s conduct. Restatement (Third) of Torts: Apportionment of Liability §26, p. 320 (1999). The premise of her argument is that because it is in a sense a fiction to say Paroline caused $1,000 in losses, $10,000 in losses, or any other lesser amount, it is necessary to embrace the much greater fiction that Paroline caused all the victim’s losses from the ongoing trade in her images. But that is a non sequitur. The Court is required to define a causal standard that effects the statute’s purposes, not to apply tort-law concepts in a mechanical way in the criminal restitution context. Even if the victim’s losses are fully “indivisible” in this sense (which is debatable), treating Paroline as a proximate cause of all the victim’s losses—especially in the absence of a workable system of contribution—stretches the fiction of aggregate causation to its breaking point. Treating him as a cause of a smaller amount of the victim’s general losses, taking account of his role in the overall causal process behind those losses, effects the statute’s purposes; avoids the nonsensical result of turning away victims emptyhanded; and does so without sacrificing the need for proportional-ity in sentencing. The victim also argues that this approach would consign her to “piecemeal” restitution and leave her to face “decades of litigation that might never lead to full recovery,” Brief for Respondent Amy 57, which “would convert Congress’s promise to child pornography victims into an empty gesture,” id., at 66. But Congress has not promisedvictims full and swift restitution at all costs. To be sure, the statute states a strong restitutionary purpose; but that purpose cannot be twisted into a license to hold a defendant liable for an amount drastically out of proportion to his own individual causal relation to the victim’s losses. Furthermore, an approach of this sort better effects the need to impress upon defendants that their acts are not irrelevant or victimless. As the Government observes, Reply Brief for United States 18, it would undermine this important purpose of criminal restitution if the victim simply collected her full losses from a handful of wealthy possessors and left the remainder to pay nothing because she had already fully collected. Of course the victim should someday collect restitution for all her child-pornography losses, but it makes sense to spread payment among a larger number of offenders in amounts more closely in proportion to their respective causal roles and their own circumstances so that more are made aware, through the concrete mechanism of restitution, of the impact of child-pornography possession on victims. C This approach is not without its difficulties. Restitution orders should represent “an application of law,” not “a decisionmaker’s caprice,” Philip Morris USA v. Williams, 549 U. S. 346, 352 (2007) (internal quotation marks omitted), and the approach articulated above involves discretion and estimation. But courts can only do their best to apply the statute as written in a workable manner, faithful to the competing principles at stake: that victims should be compensated and that defendants should be held to account for the impact of their conduct on those victims, but also that defendants should be made liable for the consequences and gravity of their own conduct, not the conduct of others. District courts routinely exercise wide discretion both in sentencing as a general matter and more specifically in fashioning restitution orders. There is no reason to believe they cannot apply the causal standard defined above in a reasonable manner without further detailed guidance at this stage in the law’s elaboration. Based on its experience in prior cases of this kind, the Government—which, as noted above, see supra, at 5–6, bears the burden of proving the amount of the victim’s losses, §3664(e)—could also inform district courts of restitution sought and ordered in other cases. * * * The Fifth Circuit’s interpretation of the requirements of §2259 was incorrect. The District Court likewise erred in requiring a strict showing of but-for causation. 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.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus PAROLINE v. UNITED STATES et al. certiorari to the united states court of appeals for the fifth circuit No. 12–8561. Argued January 22, 2014—Decided April 23, 2014 The respondent victim in this case was sexually abused as a young girl in order to produce child pornography. When she was 17, she learned that images of her abuse were being trafficked on the Internet, in effect repeating the original wrongs, for she knew that her humiliation and hurt would be renewed well into the future as thousands of additional wrongdoers witnessed those crimes. Petitioner Paroline pleaded guilty in federal court to possessing images of child pornography, which included two of the victim, in violation of 18 U. S. C. §2252. The victim then sought restitution under §2259, requesting nearly $3 million in lost income and about $500,000 in future treatment and counseling costs. The District Court declined to award restitution, concluding that the Government had not met its burden of proving what losses, if any, were proximately caused by Paroline’s offense. The victim sought a writ of mandamus, asking the Fifth Circuit to direct the District Court to order Paroline to pay restitution. Granting the writ on rehearing en banc, the Fifth Circuit held, inter alia, that §2259 did not limit restitution to losses proximately caused by the defendant, and that each defendant who possessed the victim’s images should be made liable for the victim’s entire losses from the trade in her images. Held: 1. Restitution is proper under §2259 only to the extent the defendant’s offense proximately caused a victim’s losses. This provision has a broad restitutionary purpose, stating that a district court “shall order restitution for any offense” under Chapter 110 of Title 18, such as Paroline’s possession offense; requiring district courts to order defendants “to pay the victim . . . the full amount of the victim’s losses as determined by the court,” §2259(b)(1); and expressly making “issuance of a restitution order . . . mandatory,” §2259(b)(4)(A). The Government has the “burden of demonstrating the amount of the [victim’s] loss.” §3664(e). To say one event proximately caused another means, first, that the former event caused the latter, i.e., actual cause or cause in fact; and second, that it is a proximate cause, i.e., it has a sufficient connection to the result. The concept of proximate causation is applicable in both criminal and tort law, and the analysis is parallel in many instances. Section 2259(c) defines a victim as “the individual harmed as a result of a commission of a crime under this chapter.” The words “as a result of” plainly suggest causation, and the referent of “a crime” is the offense of conviction. The “full amount of the victim’s losses,” §2259(b)(1), includes “any costs incurred by the victim” for six enumerated categories of expense, §2259(b)(3). The reference to “costs incurred by the victim” is most naturally understood as costs arising “as a result of” the offense of conviction, i.e., the defendant’s conduct. And the last of the six enumerated categories—for “other losses suffered . . . as a proximate result of the offense,” §2259(b)(3)(F)—clearly states that the causal requirement is one of proximate cause. This reading is supported by the canon of construction that, “[w]hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.” Porto Rico Railway, Light & Power Co. v. Mor, 253 U.S. 345, 348. The reading also presents a commonsense way to impose sensible limitations on claims for attenuated costs. . 2. Applying the statute’s causation requirements in this case, victims should be compensated and defendants should be held to account for the impact of their conduct on those victims, but defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others. . (a) A somewhat atypical causal process underlies the losses here. It may be simple to prove aggregate losses, i.e., “general losses,” stemming from the ongoing traffic in the victim’s images, but the question for §2259 purposes is how much of these general losses were the “proximate result” of an individual defendant’s offense. Here, the victim’s costs of treatment and lost income resulting from the trauma of knowing that images of her abuse are being viewed over and over are direct and foreseeable results of child-pornography crimes, provided the prerequisite of factual causation is satisfied. The primary problem, then, is the proper standard of causation in fact. . (b) A showing of but-for causation is not the proper standard here, for it is not possible to prove that the victim’s losses would be less but for one possessor’s individual role in the large, loosely connected network through which her images circulate. The victim and the Government urge the Court to read §2259 to require a less restrictive causation standard in child-pornography cases like this. They endorse the theory of “aggregate causation,” one formulation of which finds factual causation satisfied where a wrongdoer’s conduct, though alone “insufficient . . . to cause the plaintiff’s harm,” is, “when combined with conduct by other persons,” “more than sufficient to cause the harm.” 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm §27, Comment f. Tort law teaches that such alternative causal tests, though a kind of legal fiction, may be necessary to vindicate the law’s purposes, for it would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm, and nonsensical to adopt a rule whereby individuals hurt by the combined wrongful acts of many would have no redress, while those hurt by the acts of one person alone would. These are sound principles. Taken too far, however, such alternative causal standards would treat each possessor as the cause in fact of all the trauma and attendant losses incurred as a result of all the ongoing traffic in the victim’s images. Aggregate causation logic should not be adopted in an incautious manner in the context of criminal restitution, which differs from tort law in numerous respects. Paroline’s contribution to the causal process underlying the victim’s losses was very minor, both compared to the combined acts of all other relevant offenders and compared to the contributions of other individual offenders, particularly distributors and the initial producer of the child pornography. Congress gave no indication that it intended the statute to be applied in an expansive manner so starkly contrary to the principle that restitution should reflect the consequences of the defendant’s own conduct. The victim claims that holding each possessor liable for her entire losses would be fair and practical in part because offenders can seek contribution from one another, but there is no general federal right to contribution and no specific statutory authorization for contribution here. Her severe approach could also raise questions under the Excessive Fines Clause of the Eighth Amendment. . (c) While the victim’s expansive reading must be rejected, that does not mean the broader principles underlying aggregate causation theories are irrelevant to determining the proper outcome in cases like this. The cause of the victim’s general losses is the trade in her images, and Paroline is a part of that cause. Just as it undermines the purposes of tort law to turn away plaintiffs harmed by several wrongdoers, it would undermine §2259’s purposes to turn away victims in cases like this. With respect to the statute’s remedial purpose, there is no question that it would produce anomalous results to say that no restitution is appropriate in these circumstances, for harms of the kind the victim endured here are a major reason why child pornography is outlawed. The unlawful conduct of everyone who reproduces, distributes, or possesses images of the victim’s abuse—including Paroline—plays a part in sustaining and aggravating this tragedy. And there is no doubt Congress wanted restitution for such victims. Denying restitution would also be at odds with §2259’s penological purposes, which include the need to impress upon offenders that their conduct produces concrete and devastating harms for real, identifiable victims. Thus, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in her images but where it is impossible to trace a particular amount of those losses to the individual defendant utilizing a more traditional causal inquiry, a court should order restitution in an amount that comports with the defendant’s relative role in the causal process underlying the victim’s general losses. District courts should use discretion and sound judgment in determining the proper amount of restitution. A variety of factors may serve as guideposts. Courts might, as a start, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images, and then base an award on factors bearing on the relative causal significance of the defendant’s conduct in producing those losses. The victim finds this approach untenable because her losses are “indivisible,” but the Court is required to define a causal standard that effects the statute’s purposes, not to apply tort-law concepts in a mechanical way in the criminal restitution context. She also argues she will be consigned to “piecemeal” restitution that may never lead to full recovery, but Congress has not promised victims full and swift restitution at the cost of holding a defendant liable for an amount drastically out of proportion to his individual causal relation to those losses. Furthermore, this approach better effects the need to impress upon defendants that their acts are not irrelevant or victimless. . (d) Though this approach is not without difficulties, courts can only do their best to apply the statute as written in a workable manner, faithful to the competing principles at stake: that victims should be compensated and that defendants should be held to account for the impact of their own conduct, not the conduct of others. District courts, which routinely exercise wide discretion both in sentencing generally and in fashioning restitution orders, should be able to apply the causal standard defined here without further detailed guidance. P. 25. 701 F.3d 749, vacated and remanded. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Alito, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined. Sotomayor, J., filed a dissenting opinion.

Title 18 U.S. C. §2259(a) requires district courts to order defendants to pay the victim the full amount of the victim’s losses as determined by the court, and further provides that restitution shall be enforced in accordance with a mandatory order issued and issued under the section. Petitioner pleaded guilty to a federal count of child-pornography exploitation of children, and admitted knowing possession of between 150 and 300 images of child pornography, two of which depicted respondent victim. The District Court declined to award restitution, finding that the Government had failed to meet its burden of proving what losses, if any, were proximately caused by petitioner, and that an award of restitution was not appropriate. The victim sought a writ of mandamus, asking the Court of Appeals to direct the District Court to order petitioner to pay restitution in the amount requested. The court denied relief. Held: The judgment is vacated, and the case is remanded. ; 672 F. Supp. 2d 781, vacated. Certiorari was granted to resolve a conflict in the Courts of Appeals over the proper causation inquiry for purposes of determining the entitlement to and amount of restitution under §225 9. Reported below: 701 F. 3d 749 (CA5, 2013). JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR join, concurred in the judgment.

2013_12-1315

https://www.oyez.org/cases/2013/12-1315

. The Copyright Act provides that “[n]o civil action shall be maintained under the [Act] unless it is commenced within three years after the claim accrued.” 17 U. S. C. §507(b). This case presents the question whether the equitable defense of laches (unreasonable, prejudicial delay in commencing suit) may bar relief on a copyright infringement claim brought within §507(b)’s three-year limitations period. Section 507(b), it is undisputed, bars relief of any kind for conduct occurring prior to the three-year limitations period. To the extent that an infringement suit seeks relief solely for conduct occurring within the limitations period, however, courts are not at liberty to jettison Congress’ judgment on the timeliness of suit. Laches, we hold, cannot be invoked to preclude adjudication of a claim for damages brought within the three-year window. As to equitable relief, in extraordinary circumstances, laches may bar at the very threshold the particular relief requested by the plaintiff. And a plaintiff’s delay can always be brought to bear at the remedial stage, in determining appropriate injunctive relief, and in assessing the “profits of the infringer . . . attributable to the infringement.” §504(b).[1] Petitioner Paula Petrella, in her suit for copyright infringement, sought no relief for conduct occurring outside §507(b)’s three-year limitations period. Nevertheless, the courts below held that laches barred her suit in its en-tirety, without regard to the currency of the conduct of which Petrella complains. That position, we hold, is contrary to §507(b) and this Court’s precedent on the province of laches. I The Copyright Act (Act), 17 U. S. C. §101 et seq., grants copyright protection to original works of authorship. §102(a). Four aspects of copyright law bear explanation at the outset. First, the length of a copyright term. Under the Act, a copyright “vests initially in the author or authors of the work,” who may transfer ownership to a third party. §201. The Act confers on a copyright owner certain exclusive rights, including the rights to reproduce and distribute the work and to develop and market derivative works. §106. Copyrighted works published before 1978—as was the work at issue—are protected for an initial period of 28 years, which may be—and in this case was—extended for a renewal period of up to 67 years. §304(a). From and after January 1, 1978, works are generally protected from the date of creation until 70 years after the author’s death. §302(a). Second, copyright inheritance. For works copyrighted under the pre-1978 regime in which an initial period of protection may be followed by a renewal period, Congress provided that the author’s heirs inherit the renewal rights. See §304(a)(1)(C)(ii)–(iv). We held in Stewart v. Abend, 495 U. S. 207 (1990) , that if an author who has assigned her rights away “dies before the renewal period, then the assignee may continue to use the original work [to produce a derivative work] only if the author’s successor transfers the renewal rights to the assignee.” Id., at 221.[2] Third, remedies. The Act provides a variety of civil remedies for infringement, both equitable and legal. See §§502–505, described supra, at 2, n. 1. A court may issue an injunction “on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” §502(a). At the election of the copyright owner, a court may also award either (1) “the copyright owner’s actual damages and any additional profits of the infringer,” §504(a)(1), which petitioner seeks in the instant case, or (2) statutory damages within a defined range, §504(c). Fourth, and most significant here, the statute of limitations. Until 1957, federal copyright law did not include a statute of limitations for civil suits. Federal courts therefore used analogous state statutes of limitations to determine the timeliness of infringement claims. See S. Rep. No. 1014, 85th Cong., 1st Sess., 2 (1957) (hereinafter Senate Report). And they sometimes invoked laches to abridge the state-law prescription. As explained in Teamsters & Employers Welfare Trust of Ill. v. Gorman Bros. Ready Mix, 283 F. 3d 877, 881 (CA7 2002): “When Congress fails to enact a statute of limitations, a [federal] court that borrows a state statute of limitations but permits it to be abridged by the doctrine of laches is not invading congressional prerogatives. It is merely filling a legislative hole.” (internal citation omitted). In 1957, Congress addressed the matter and filled the hole; it prescribed a three-year look-back limitations period for all civil claims arising under the Copyright Act. See Act of Sept. 7, 1957, Pub. L. 85–313, 71Stat. 633, 17 U. S. C. §115(b) (1958 ed.). The provision, as already noted, reads: “No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” §507(b).[3] The federal limitations prescription governing copyright suits serves two purposes: (1) to render uniform and certain the time within which copyright claims could be pursued; and (2) to prevent the forum shopping invited by disparate state limitations periods, which ranged from one to eight years. Senate Report 2; see H. R. Rep. No. 2419, 84th Cong., 2d Sess., 2 (1956). To comprehend how the Copyright Act’s limitations period works, one must understand when a copyright infringement claim accrues. A claim ordinarily accrues “when [a] plaintiff has a complete and present cause of action.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192, 201 (1997) (internal quotation marks omitted). In other words, the limitations period generally begins to run at the point when “the plaintiff can file suit and obtain relief.” Ibid. A copyright claim thus arises or “accrue[s]” when an infringing act occurs.[4] It is widely recognized that the separate-accrual rule attends the copyright statute of limitations.[5] Under that rule, when a defendant commits successive violations, the statute of limitations runs separately from each violation. Each time an infringing work is reproduced or distributed, the infringer commits a new wrong. Each wrong gives rise to a discrete “claim” that “accrue[s]” at the time the wrong occurs.[6] In short, each infringing act starts a new limitations period. See Stone v. Williams, 970 F. 2d 1043, 1049 (CA2 1992) (“Each act of infringement is a distinct harm giving rise to an independent claim for relief.”). Under the Act’s three-year provision, an infringement is actionable within three years, and only three years, of its occurrence. And the infringer is insulated from liability for earlier infringements of the same work. See 3 M. Nimmer & D. Nimmer, Copyright §12.05[B][1][b], p. 12–150.4 (2013) (“If infringement occurred within three years prior to filing, the action will not be barred even if prior infringements by the same party as to the same work are barred because they occurred more than three years previously.”). Thus, when a defendant has engaged (or is alleged to have engaged) in a series of discrete infringing acts, the copyright holder’s suit ordinarily will be timely under §507(b) with respect to more recent acts of infringement (i.e., acts within the three-year window), but untimely with respect to prior acts of the same or similar kind.[7] In sum, Congress provided two controlling time prescriptions: the copyright term, which endures for decades, and may pass from one generation to another; and §507(b)’s limitations period, which allows plaintiffs during that lengthy term to gain retrospective relief running only three years back from the date the complaint was filed. II A The allegedly infringing work in this case is the criti-cally acclaimed motion picture Raging Bull, based on the life of boxing champion Jake LaMotta. After retiring from the ring, LaMotta worked with his longtime friend, Frank Petrella, to tell the story of the boxer’s career. Their venture resulted in three copyrighted works: two screenplays, one registered in 1963, the other in 1973, and a book, registered in 1970. This case centers on the screenplay registered in 1963. The registration identified Frank Petrella as sole author, but also stated that the screenplay was written “in collaboration with” LaMotta. App. 164. In 1976, Frank Petrella and LaMotta assigned their rights in the three works, including renewal rights, to Chartoff-Winkler Productions, Inc. Two years later, respondent United Artists Corporation, a subsidiary of respond-ent Metro-Goldwyn-Mayer, Inc. (collectively, MGM), acquired the motion picture rights to the book and both screenplays, rights stated by the parties to be “exclusiv[e] and forever, including all periods of copyright and renewals and extensions thereof.” Id., at 49. In 1980, MGM released, and registered a copyright in, the film Raging Bull, directed by Martin Scorcese and starring Robert De Niro, who won a Best Actor Academy Award for his portrayal of LaMotta. MGM continues to market the film, and has converted it into formats unimagined in 1980, including DVD and Blu-ray. Frank Petrella died in 1981, during the initial terms of the copyrights in the screenplays and book. As this Court’s decision in Stewart confirmed, Frank Petrella’s renewal rights reverted to his heirs, who could renew the copyrights unburdened by any assignment previously made by the author. See 495 U. S., at 220–221 (relying on Court’s earlier decision in Miller Music Corp. v. Charles N. Daniels, Inc., 362 U. S. 373 (1960) ). Plaintiff below, petitioner here, Paula Petrella (Petrella) is Frank Petrella’s daughter. Learning of this Court’s decision in Stewart, Petrella engaged an attorney who, in 1991, renewed the copyright in the 1963 screenplay. Because the copyrights in the 1973 screenplay and the 1970 book were not timely renewed, the infringement claims in this case rest exclusively on the screenplay registered in 1963. Petrella is now sole owner of the copyright in that work.[8] In 1998, seven years after filing for renewal of the copyright in the 1963 screenplay, Petrella’s attorney informed MGM that Petrella had obtained the copyright to that screenplay. Exploitation of any derivative work, including Raging Bull, the attorney asserted, infringed on the copyright now vested in Petrella. During the next two years, counsel for Petrella and MGM exchanged letters in which MGM denied the validity of the infringement claims, and Petrella repeatedly threatened to take legal action. B Some nine years later, on January 6, 2009, Petrella filed a copyright infringement suit in the United States District Court for the Central District of California. She alleged that MGM violated and continued to violate her copyright in the 1963 screenplay by using, producing, and distributing Raging Bull, a work she described as derivative of the 1963 screenplay. Petrella’s complaint sought monetary and injunctive relief. Because the statute of limitations for copyright claims requires commencement of suit “within three years after the claim accrued,” §507(b), Petrella sought relief only for acts of infringement occurring on or after January 6, 2006. No relief, she recognizes, can be awarded for infringing acts prior to that date. MGM moved for summary judgment on several grounds, among them, the equitable doctrine of laches. Petrella’s 18-year delay, from the 1991 renewal of the copyright on which she relied, until 2009, when she commenced suit, MGM maintained, was unreasonable and prejudicial to MGM. See Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment in No. CV 09–0072 (CD Cal.). The District Court granted MGM’s motion. See App. to Pet. for Cert. 28a–48a. As to the merits of the infringement claims, the court found, disputed issues of material fact precluded summary adjudication. See id., at 34a–42a. Even so, the court held, laches barred Petrella’s complaint. Id., at 42a–48a. Petrella had unreasonably delayed suit by not filing until 2009, the court concluded, and further determined that MGM was prejudiced by the delay. Id., at 42a–46a. In particular, the court stated, MGM had shown “expectations-based prejudice,” because the company had “made significant investments in exploiting the film”; in addition, the court accepted that MGM would encounter “evidentiary prejudice,” because Frank Petrella had died and LaMotta, then aged 88, appeared to have sustained a loss of memory. Id., at 44a–46a.[9] The U. S. Court of Appeals for the Ninth Circuit affirmed the laches-based dismissal. 695 F. 3d 946 (2012). Under Ninth Circuit precedent, the Court of Appeals first observed, “[i]f any part of the alleged wrongful conduct occurred outside of the limitations period, courts presume that the plaintiff’s claims are barred by laches.” Id., at 951 (internal quotation marks omitted). The presumption was applicable here, the court indicated, because “[t]he statute of limitations for copyright claims in civil cases is three years,” ibid. (citing §507(b)), and Petrella was aware of her potential claims many years earlier (as was MGM), id., at 952. “[T]he true cause of Petrella’s delay,” the court suggested, “was, as [Petrella] admits, that ‘the film hadn’t made money’ [in years she deferred suit].” Id., at 953.[10] Agreeing with the District Court, the Ninth Circuit determined that MGM had established expectations-based prejudice: the company had made a large investment in Raging Bull, believing it had complete ownership and control of the film. Id., at 953–954.[11] Judge Fletcher concurred only because Circuit precedent obliged him to do so. Id., at 958. Laches in copyright cases, he observed, is “entirely a judicial creation,” one notably “in tension with Congress’ [provision of a three-year limitations period].” Ibid. We granted certiorari to resolve a conflict among the Circuits on the application of the equitable defense of laches to copyright infringement claims brought within the three-year look-back period prescribed by Congress.[12] 570 U. S. ___ (2013). III We consider first whether, as the Ninth Circuit held, laches may be invoked as a bar to Petrella’s pursuit of legal remedies under 17 U. S. C. §504(b). The Ninth Circuit erred, we hold, in failing to recognize that the copyright statute of limitations, §507(b), itself takes account of delay. As earlier observed, see supra, at 5–6, a successful plaintiff can gain retrospective relief only three years back from the time of suit. No recovery may be had for infringement in earlier years. Profits made in those years remain the defendant’s to keep. Brought to bear here, §507(b) directs that MGM’s returns on its investment in Raging Bull in years outside the three-year window (years before 2006) cannot be reached by Petrella. Only by disregarding that feature of the statute, and the separate-accrual rule attending §507(b), see supra, at 4–5, could the Court of Appeals presume that infringing acts occurring before January 6, 2006 bar all relief, monetary and injunctive, for infringement occurring on and after that date. See 695 F. 3d, at 951; supra, at 9–10.[13] Moreover, if infringement within the three-year look-back period is shown, the Act allows the defendant to prove and offset against profits made in that period “deductible expenses” incurred in generating those profits. §504(b). In addition, the defendant may prove and offset “elements of profit attributable to factors other than the copyrighted work.” §504(b). The defendant thus may retain the return on investment shown to be attributable to its own enterprise, as distinct from the value created by the infringed work. See Sheldon v. Metro-Goldwyn Pictures Corp., 309 U. S. 390, 402, 407 (1940) (equitably apportioning profits to account for independent contributions of infringing defendant). See also infra, at 19–22 (delay in commencing suit as a factor in determining contours of relief appropriately awarded). Last, but hardly least, laches is a defense developed by courts of equity; its principal application was, and remains, to claims of an equitable cast for which the Legislature has provided no fixed time limitation. See 1 D. Dobbs, Law of Remedies §2.4(4), p. 104 (2d ed. 1993) (hereinafter Dobbs) (“laches . . . may have originated in equity because no statute of limitations applied, . . . suggest[ing] that laches should be limited to cases in which no statute of limitations applies”). Both before and after the merger of law and equity in 1938,[14] this Court has cautioned against invoking laches to bar legal relief. See Holmberg v. Armbrecht, 327 U. S. 392, 395, 396 (1946) (in actions at law, “[i]f Congress explicitly puts a limit upon the time for enforcing a right which it created, there is an end of the matter,” but “[t]raditionally . . . , statutes of limitation are not controlling measures of equitable relief”); Merck & Co. v. Reynolds, 559 U. S. 633, 652 (2010) (quoting, for its current relevance, statement in United States v. Mack, 295 U. S. 480, 489 (1935) , that “[l]aches within the term of the statute of limitations is no defense [to an action] at law”); County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226 , n. 16 (1985) (“[A]pplication of the equitable defense of laches in an action at law would be novel indeed.”).[15] Because we adhere to the position that, in face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief, the dissent thinks we “plac[e] insufficient weight upon the rules and practice of modern litigation.” Post, at 12. True, there has been, since 1938, only “one form of action—the civil action.” Fed. Rule Civ. Proc. 2. But “the substantive and remedial principles [applicable] prior to the advent of the federal rules [have] not changed.” 4 C. Wright & A. Miller, Federal Practice and Procedure §1043, p. 177 (3d ed. 2002). Holmberg, Merck, and Oneida so illustrate. The dissent presents multiple citations, see post, at 1, 3–4, 7–8, 10–11, many of them far afield from the issue at hand, others obscuring what the cited decisions in fact ruled. Compare, e.g., post, at 1, 11, with infra, at 20–21 (describing Chirco v. Crosswinds Communities, Inc., 474 F. 3d 227 (CA6 2007)); post, at 1, 10–11, with infra, at 15, n. 16 (describing National Railroad Passenger Corporation v. Morgan, 536 U. S. 101 (2002) ); post, at 8, with infra, at 15, n. 16 (describing Patterson v. Hewitt, 195 U. S. 309 (1904) ). Yet tellingly, the dissent has come up with no case in which this Court has approved the application of laches to bar a claim for damages brought within the time allowed by a federal statute of limitations. There is nothing at all “differen[t],” see post, at 12, about copyright cases in this regard. IV We turn now to MGM’s principal arguments regarding the contemporary scope of the laches defense, all of them embraced by the dissent. A Laches is listed among affirmative defenses, along with, but discrete from, the statute of limitations, in Federal Rule of Civil Procedure 8(c). Accordingly, MGM maintains, the plea is “available . . . in every civil action” to bar all forms of relief. Tr. of Oral Arg. 43; see Brief for Respondents 40. To the Court’s question, could laches apply where there is an ordinary six-year statute of limitations, MGM’s counsel responded yes, case-specific circumstances might warrant a ruling that a suit brought in year five came too late. Tr. of Oral Arg. 52; see id., at 41. The expansive role for laches MGM envisions careens away from understandings, past and present, of the essentially gap-filling, not legislation-overriding, office of laches. Nothing in this Court’s precedent suggests a doctrineof such sweep. Quite the contrary, we have never applied laches to bar in their entirety claims for discrete wrongs occurring within a federally prescribed limitations pe-riod.[16] Inviting individual judges to set a time limit other than the one Congress prescribed, we note, would tug against the uniformity Congress sought to achieve when it enacted §507(b). See supra, at 3–4. B MGM observes that equitable tolling “is read into every federal statute of limitation,” Holmberg, 327 U. S., at 397, and asks why laches should not be treated similarly. See Brief for Respondents 23–26; post, at 7–8. Tolling, which lengthens the time for commencing a civil action in appropriate circumstances,[17] applies when there is a statute of limitations; it is, in effect, a rule of interpretation tied to that limit. See Young v. United States, 535 U. S. 43 –50 (2002); Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 464 (1975) .[18] Laches, in contrast, originally served as a guide when no statute of limitations controlled the claim; it can scarcely be described as a rule for interpreting a statutory prescription. That is so here, because the statute, §507(b), makes the starting trigger an infringing act committed three years back from the commencement of suit, while laches, as conceived by the Ninth Circuit and advanced by MGM, makes the presumptive trigger the defendant’s initial infringing act. See 695 F. 3d, at 951; Brief for United States 16. C MGM insists that the defense of laches must be avail-able to prevent a copyright owner from sitting still, doing nothing, waiting to see what the outcome of an alleged infringer’s investment will be. See Brief for Respondents 48. In this case, MGM stresses, “[Petrella] conceded that she waited to file because ‘the film was deeply in debt and in the red and would probably never recoup.’ ” Id., at 47 (quoting from App. 110). The Ninth Circuit similarly faulted Petrella for waiting to sue until the film Raging Bull “made money.” 695 F. 3d, at 953 (internal quotation marks omitted). See also post, at 3–6 (deploring plaintiffs who wait to see whether the allegedly infringing work makes money). It is hardly incumbent on copyright owners, however, to challenge each and every actionable infringement. And there is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copyrighted work, has no effect on the original work, or even complements it. Fan sites prompted by a book or film, for example, may benefit the copyright owner. See Wu, Tolerated Use, 31 Colum. J. L. & Arts 617, 619–620 (2008). Even if an infringement is harmful, the harm may be too small to justify the cost of litigation. If the rule were, as MGM urges, “sue soon, or forever hold your peace,” copyright owners would have to mount a federal case fast to stop seemingly innocuous infringements, lest those infringements eventually grow in magnitude. Section 507(b)’s three-year limitations period, however, coupled to the separate-accrual rule, see supra, at3–6, avoids such litigation profusion. It allows a copyright owner to defer suit until she can estimate whether litigation is worth the candle. She will miss out on damages for periods prior to the three-year look-back, but her right to prospective injunctive relief should, in most cases, remain unaltered.[19] D MGM points to the danger that evidence needed or useful to defend against liability will be lost during a copyright owner’s inaction. Brief for Respondents 37–38; see post, at 2–4.[20] Recall, however, that Congress provided for reversionary renewal rights exercisable by an author’s heirs, rights that can be exercised, at the earliest for pre-1978 copyrights, 28 years after a work was written and copyrighted. See, supra, at 2–3. At that time, the author, and perhaps other witnesses to the creation of the work, will be dead. See supra, at 7. Congress must have been aware that the passage of time and the author’s death could cause a loss or dilution of evidence. Congress chose, nonetheless, to give the author’s family “a second chance to obtain fair remuneration.” Stewart, 495 U. S., at 220. Moreover, a copyright plaintiff bears the burden of proving infringement. See 3 W. Patry, Copyright §9.4, p. 9–18 (2013) (hereinafter Patry) (“As in other civil litigation, a copyright owner bears the burden of establishing a prima facie case.”). But cf. post, at 4 (overlooking plain-tiff’s burden to show infringement and the absence of any burden upon the defendant “to prove that it did not infringe”). Any hindrance caused by the unavailability of evidence, therefore, is at least as likely to affect plaintiffs as it is to disadvantage defendants. That is so in cases of the kind Petrella is pursuing, for a deceased author most probably would have supported his heir’s claim. The registration mechanism, we further note, reduces the need for extrinsic evidence. Although registration is “permissive,” both the certificate and the original work must be on file with the Copyright Office before a copyright owner can sue for infringement. §§408(b), 411(a). Key evidence in the litigation, then, will be the certificate, the original work, and the allegedly infringing work. And the adjudication will often turn on the factfinder’s direct comparison of the original and the infringing works, i.e., on the factfinder’s “good eyes and common sense” in comparing the two works’ “total concept and overall feel.” Peter F. Gaito Architecture, LLC v. Simone Development Corp., 602 F. 3d 57, 66 (CA2 2010) (internal quotation marks omitted). E Finally, when a copyright owner engages in intention-ally misleading representations concerning his abstention from suit, and the alleged infringer detrimentally relies on the copyright owner’s deception, the doctrine of estoppel may bar the copyright owner’s claims completely, eliminating all potential remedies. See 6 Patry §20:58, at 20–110 to 20–112.[21] The test for estoppel is more exacting than the test for laches, and the two defenses are differently oriented. The gravamen of estoppel, a defense long recognized as available in actions at law, see Wehrman v. Conklin, 155 U. S. 314, 327 (1894) , is misleading and consequent loss, see 6 Patry §20:58, at 20–110 to 20–112. Delay may be involved, but is not an element of the defense. For laches, timeliness is the essential element. In contrast to laches, urged by MGM entirely to override the statute of limitations Congress prescribed, estoppel does not undermine Congress’ prescription, for it rests on misleading, whether engaged in early on, or later in time. Stating that the Ninth Circuit “ha[d] taken a wrong turn in its formulation and application of laches in copyright cases,” Judge Fletcher called for fresh consideration of the issue. 695 F. 3d, at 959. “A recognition of the distinction between . . . estoppel and laches,” he suggested, “would be a good place to start.” Ibid. We agree. V The courts below summarily disposed of Petrella’s case based on laches, preventing adjudication of any of her claims on the merits and foreclosing the possibility of any form of relief. That disposition, we have explained, was erroneous. Congress’ time provisions secured to authors a copyright term of long duration, and a right to sue for infringement occurring no more than three years back from the time of suit. That regime leaves “little place” for a doctrine that would further limit the timeliness of a copyright owner’s suit. See 1 Dobbs §2.6(1), at 152. In extraordinary circumstances, however, the consequences of a delay in commencing suit may be of sufficient magnitude to warrant, at the very outset of the litigation, curtailment of the relief equitably awardable. Chirco v. Crosswinds Communities, Inc., 474 F. 3d 227 (CA6 2007), is illustrative. In that case, the defendants were alleged to have used without permission, in planning and building a housing development, the plaintiffs’ copyrighted architectural design. Long aware of the defendants’ project, the plaintiffs took no steps to halt the housing development until more than 168 units were built, 109 of which were occupied. Id., at 230. Although the action was filed within §507(b)’s three-year statute of limitations, the District Court granted summary judgment to the defendants, dismissing the entire case on grounds of laches. The trial court’s rejection of the entire suit could not stand, the Court of Appeals explained, for it was not within the Judiciary’s ken to debate the wisdom of §507(b)’s three-year look-back prescription. Id., at 235. Nevertheless, the Court of Appeals affirmed the District Court’s judgment to this extent: The plaintiffs, even if they might succeed in proving infringement of their copyrighted design, would not be entitled to an order mandating destruction of the housing project. That relief would be inequit-able, the Sixth Circuit held, for two reasons: the plaintiffs knew of the defendants’ construction plans before the de-fendants broke ground, yet failed to take readily available measures to stop the project; and the requested relief would “work an unjust hardship” upon the defendants and innocent third parties. Id., at 236. See also New Era Publications Int’l v. Henry Holt & Co., 873 F. 2d 576, 584–585 (CA2 1989) (despite awareness since 1986 that book containing allegedly infringing material would be published in the United States, copyright owner did not seek a restraining order until 1988, after the book had been printed, packed, and shipped; as injunctive relief “would [have] result[ed] in the total destruction of the work,” the court “relegat[ed plaintiff] to its damages remedy”). In sum, the courts below erred in treating laches as a complete bar to Petrella’s copyright infringement suit. The action was commenced within the bounds of §507(b), the Act’s time-to-sue prescription, and does not present extraordinary circumstances of the kind involved in Chirco and New Era. Petrella notified MGM of her copyright claims before MGM invested millions of dollars in creating a new edition of Raging Bull. And the equitable relief Petrella seeks—e.g., disgorgement of unjust gains and an injunction against future infringement—would not result in “total destruction” of the film, or anything close to it. See New Era, 873 F. 2d, at 584. MGM released Raging Bull more than three decades ago and has marketed it continuously since then. Allowing Petrella’s suit to go forward will put at risk only a fraction of the income MGM has earned during that period and will work no unjust hardship on innocent third parties, such as consumers who have purchased copies of Raging Bull. Cf. Chirco, 474 F. 3d, at 235–236 (destruction remedy would have ousted families from recently purchased homes). The circumstances here may or may not (we need not decide) warrant limiting relief at the remedial stage, but they are not sufficiently extraordinary to justify threshold dismissal. Should Petrella ultimately prevail on the merits, the District Court, in determining appropriate injunctive relief and assessing profits, may take account of her delay in commencing suit. See supra, at 1–2, 11–12. In doing so, however, that court should closely examine MGM’s alleged reliance on Petrella’s delay.[22] This examination should take account of MGM’s early knowledge of Petrella’s claims, the protection MGM might have achieved through pursuit of a declaratory judgment action, the extent to which MGM’s investment was protected by the separate-accrual rule, the court’s authority to order injunctive relief “on such terms as it may deem reasonable,” §502(a), and any other considerations that would justify adjusting injunctive relief or profits. See Haas v. Leo Feist, Inc., 234 F. 105, 107–108 (SDNY 1916) (adjudicating copyright infringement suit on the merits and decreeing injunctive relief, but observing that, in awarding profits, account may be taken of copyright owner’s inaction until infringer had spent large sums exploiting the work at issue). See also Tr. of Oral Arg. 23 (Government observation that, in fashioning equitable remedies, court has considerable leeway; it could, for example, allow MGM to continue using Raging Bull as a derivative work upon payment of a reasonable royalty to Petrella). Whatever adjustments may be in order in awarding injunctive relief, and in accounting for MGM’s gains and profits, on the facts thus far presented, there is no evident basis for immunizing MGM’s present and future uses of the copyrighted work, free from any obligation to pay royalties. * * * For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 As infringement remedies, the Copyright Act provides for injunctions, §502, impoundment and disposition of infringing articles, §503, damages and profits, §504, costs and attorney’s fees, §505. Like other restitutional remedies, recovery of profits “is not easily characterized as legal or equitable,” for it is an “amalgamation of rights and remedies drawn from both systems.” Restatement (Third) of Restitution and Unjust Enrichment §4, Comment , p. 28 (2010). Given the “protean character” of the profits-recovery remedy, see Comment , at 30, we regard as appropriate its treatment as “equitable” in this case. 2 For post-1978 works, heirs still have an opportunity to recapture rights of the author. See 3 M. Nimmer & D. Nimmer, Copyright §11.01[A], p. 11–4 (2013) (hereinafter Nimmer). 3 The Copyright Act was pervasively revised in 1976, but the three-year look-back statute of limitations has remained materially unchanged. See Act of Oct. 19, 1976, §101, . 4 Although we have not passed on the question, nine Courts of Appeals have adopted, as an alternative to the incident of injury rule, a “discovery rule,” which starts the limitations period when “the plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim.” v. , 568 F. 3d 425, 433 (CA3 2009) (internal quotation marks omitted). See also 6 W. Patry, Copyright §20:19, p. 20–28 (2013) (hereinafter Patry) (“The overwhelming majority of courts use discovery accrual in copyright cases.”). 5 See generally ., §20:23, at 20–44; 3 Nimmer §12.05[B][1][b], at 12–150.2 to 12–150.4. See also, , 568 F. 3d, at 433; v. , 533 F. 3d 1287, 1320, n. 39 (CA11 2008); v. , 376 F. 3d 615, 621 (CA6 2004); v. , 37 F. 3d 180, 182 (CA5 1994); v. , 19 F. 3d 479, 481 (CA9 1994). 6 Separately accruing harm should not be confused with harm from past violations that are continuing. Compare v. , (for separately accruing harm, each new act must cause “harm [to the plaintiff] over and above the harm that the earlier acts caused”), with v. , –381 (1982) (“[W]here a plaintiff . . . challenges . . . an unlawful practice that continues into the limitations period, the complaint is timely when it is filed within [the limitations period, measured from] the last asserted occurrence of that practice.” (footnote omitted)). 7 A case arising outside of the copyright context is illustrative. In v. , , an employer was delinquent in making a series of scheduled payments to an underfunded pension plan. See at 198–199. The trustees filed suit just over six years after the first missed payment, barely outside of the applicable six-year statute of limitations. See at 198. Because the first missed payment in the series fell outside the statute of limitations, the employer argued that the subsequent missed payments were also time barred. See at 206. We rejected that argument. The remaining claims were timely, we held, because “each missed payment create[d] a separate cause of action with its own six-year limitations period.” Cf. , 521 U. S., at 190 (for civil Racketeer Influenced and Corrupt Organizations Act claims, plaintiff may recover for acts occurring within the limitations period, but may not use an “independent, new predicate act as a bootstrap to recover for injuries caused by other earlier predicate acts that took place outside the limitations period”); v. , –121 (2002) (distinguishing discrete acts, each independently actionable, from conduct “cumulative [in] effect,” hostile environment claims pursued under Title VII of the Civil Rights Act of 1964, ; “in direct contrast to discrete acts, a single [instance of hostility] may not be actionable on its own”). But cf. at 10–11 (ignoring the distinction took care to draw between discrete acts independently actionable and conduct cumulative in effect). 8 Petrella’s attorney filed the renewal application on behalf of Frank Petrella’s heirs. When Petrella’s mother died and her brother assigned his rights to her, Petrella became the sole owner of all rights in the 1963 screenplay. 9 LaMotta, the court noted, “ha[d] suffered myriad blows to his head as a fighter years ago,” and “no longer recognize[d Petrella], even though he ha[d] known her for forty years.” App. to Pet. for Cert.45a–46a. 10 In her declaration, Petrella stated that MGM told her in 2001 that the film was in “a huge deficit financially,” “would never show a profit,” and, for that reason, “MGM would not continue to send [financial] statements [to her].” App. 234. 11 The Court of Appeals did not consider whether MGM had also shown evidentiary prejudice. 695 F. 3d 946, 953 (CA9 2012). 12 See v. , 243 F. 3d 789, 798 (CA4 2001) (laches defense unavailable in copyright infringement cases, regardless of remedy sought); , 533 F. 3d, at 1320 (“[T]here is a strong presumption [in copyright cases] that a plaintiff’s suit is timely if it is filed before the statute of limitations has run. Only in the most extraordinary circumstances will laches be recognized as a defense.”); v. , 474 F. 3d 227, 233 (CA6 2007) (in copyright litigation, laches applies only to “the most compelling of cases”); v. , 287 F. 3d 936, 950 (CA10 2002) (“Rather than deciding copyright cases on the issue of laches, courts should generally defer to the three-year statute of limitations.”); v. , 873 F. 2d 576, 584–585 (CA2 1989) (“severe prejudice, coupled with . . . unconscionable delay . . . mandates denial of . . . injunction for laches and relegation of [plaintiff] to its damages remedy”). Cf. at 1, 13 (acknowledging that application of laches should be “extraordinary,” confined to “few and unusual cases”). 13 Assuming Petrella had a winning case on the merits, the Court of Appeals’ ruling on laches would effectively give MGM a cost-free license to exploit Raging Bull throughout the long term of the copyright. The value to MGM of such a free, compulsory license could exceed by far MGM’s expenditures on the film. 14 See Fed. Rule Civ. Proc. 2 (“There is one form of action—the civil action.”); Rule 8(c) (listing among affirmative defenses both “laches” and “statute of limitations”). 15 In contrast to the Copyright Act, the Lanham Act, which governs trademarks, contains no statute of limitations, and expressly provides for defensive use of “equitable principles, including laches.” . But cf. at 8, 11 (citing v. 191 F. 3d 813 (CA7 1999), but failing to observe that Lanham Act contains no statute of limitations). 16 MGM pretends otherwise, but the cases on which it relies do not carry the load MGM would put on them. , described , at 6, n. 7, is apparently MGM’s best case, for it is cited 13 times in MGM’s brief. See Brief for Respondents 8, 9, 14, 16, 18, 19, 25, 31, 34, 35, 36, 40, 47; at 1, 7, 10–11. , however, does not so much as hint that laches may bar claims for discrete wrongs, all of them occurring within a federal limitations period. Part II–A of that opinion, dealing with the separate-accrual rule, held that “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act,” regardless of whether “past acts” are time barred. 536 U. S., at 113. Parts II–B and II–C of the opinion then separately accruing wrongs from hostile-work-environment claims, cumulative in effect and extending over long periods of time. , at 115–117, 121. Laches could be invoked, the Court reasoned, to limit the continuing violation doctrine’s potential to rescue claims, not claims accruing separately within the limitations period. 17 a party’s infancy or mental disability, absence of the defendant from the jurisdiction, fraudulent concealment. See S. Rep. No. 1014, 85th Cong., 1st Sess., 2–3 (1957) (hereinafter Senate Report). 18 The legislative history to which the dissent refers, at 7, speaks of “equitable situations on which the statute of limitations is generally suspended,” Senate Report 3, and says nothing about laches shrinking the time Congress allowed. 19 The dissent worries that a plaintiff might sue for profits “every three years . . . until the copyright expires.” at 5; see at 2. That suggestion neglects to note that a plaintiff who proves infringement will likely gain forward-looking injunctive relief stopping the defendant’s repetition of infringing acts. 20 As earlier noted, see at 10, n. 11, the Court of Appeals did not reach the question whether evidentiary prejudice existed. 695 F. 3d, at 953. 21 Although MGM, in its answer to Petrella’s complaint, separately raised both laches and estoppel as affirmative defenses, see Defendants’ Answer to Plaintiff’s Complaint in No. CV 09–0072 (CD Cal.), the courts below did not address the estoppel plea. 22 While reliance or its absence may figure importantly in this case, we do not suggest that reliance is in all cases a for adjustment of injunctive relief or profits.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus PETRELLA v. METRO-GOLDWYN-MAYER, INC., et al. certiorari to the united states court of appeals for the ninth circuit No. 12–1315. Argued January 21, 2014—Decided May 19, 2014 The Copyright Act (Act) protects copyrighted works published before 1978 for an initial period of 28 years, renewable for a period of up to 67 years. 17 U. S. C. §304(a). The author’s heirs inherit the renewal rights. See §304(a)(1)(C)(ii)–(iv). When an author who has assigned her rights away “dies before the renewal period, . . . the assignee may continue to use the original work only if the author’s successor transfers the renewal rights to the assignee,” Stewart v. Abend, 495 U.S. 207, 221. The Act provides both equitable and legal remedies for infringement: an injunction “on such terms as [a court] may deem reasonable to prevent or restrain infringement of a copyright,” §502(a); and, at the copyright owner’s election, either (1) the “owner’s actual damages and any additional profits of the infringer,” §504(a)(1), which petitioner seeks in this case, or (2) specified statutory damages, §504(c). The Act’s statute of limitations provides: “No civil action shall be maintained under the [Act] unless it is commenced within three years after the claim accrued.” §507(b). A claim ordinarily accrues when an infringing act occurs. Under the separate-accrual rule that attends the copyright statute of limitations, when a defendant has committed successive violations, each infringing act starts a new limitations period. However, under §507(b), each infringement is actionable only within three years of its occurrence. Here, the allegedly infringing work is the motion picture Raging Bull, based on the life of boxing champion Jake LaMotta, who, with Frank Petrella, told his story in, inter alia, a screenplay copyrighted in 1963. In 1976, the pair assigned their rights and renewal rights, which were later acquired by respondent United Artists Corporation, a subsidiary of respondent Metro-Goldwyn-Mayer, Inc. (collectively, MGM). In 1980, MGM released, and registered a copyright in, the film Raging Bull, and it continues to market the film today. Frank Petrella died during the initial copyright term, so renewal rights reverted to his heirs. Plaintiff below, petitioner here, Paula Petrella (Petrella), his daughter, renewed the 1963 copyright in 1991, becoming its sole owner. Seven years later, she advised MGM that its exploitation of Raging Bull violated her copyright and threatened suit. Some nine years later, on January 6, 2009, she filed an infringement suit, seeking monetary and injunctive relief limited to acts of infringement occurring on or after January 6, 2006. Invoking the equitable doctrine of laches, MGM moved for summary judgment. Petrella’s 18-year delay in filing suit, MGM argued, was unreasonable and prejudicial to MGM. The District Court granted MGM’s motion, holding that laches barred Petrella’s complaint. The Ninth Circuit affirmed. Held: 1. Laches cannot be invoked as a bar to Petrella’s pursuit of a claim for damages brought within §507(b)’s three-year window. . (a) By permitting a successful plaintiff to gain retrospective relief only three years back from the time of suit, the copyright statute of limitations itself takes account of delay. Brought to bear here, §507(b) directs that Petrella cannot reach MGM’s returns on its investment in Raging Bull in years before 2006. Moreover, if infringement within the three-year window is shown, a defendant may offset against profits made in that period expenses incurred in generating those profits. See §504(b). In addition, a defendant may retain the return on investment shown to be attributable to its own enterprise, as distinct from the value created by the infringed work. See ibid. Both before and after the merger of law and equity in 1938, this Court has cautioned against invoking laches to bar legal relief. See, e.g., Holmberg v. Armbrecht, 327 U.S. 392, 395, 396. . (b) MGM’s principal arguments regarding the contemporary scope of the laches defense are unavailing. . (1) MGM urges that, because laches is listed in Federal Rule of Civil Procedure 8(c) as an affirmative defense discrete from a statute of limitations defense, the plea should be “available . . . in every civil action” to bar all forms of relief. Such an expansive role careens away from understandings, past and present, of the essentially gap-filling, not legislation-overriding, office of laches. This Court has never applied laches to bar in their entirety claims for discrete wrongs occurring within a federally prescribed limitations period. Inviting individual judges to set a time limit other than the one Congress prescribed would tug against the uniformity Congress sought to achieve in enacting §507(b). . (2) MGM contends that laches, like equitable tolling, should be “read into every federal statute of limitation,” Holmberg, 327 U. S., at 397. However, tolling lengthens the time for commencing a civil action where there is a statute of limitations and is, in effect, a rule of interpretation tied to that statutory limit. See, e.g., Young v. United States, 535 U.S. 43, 49–50. In contrast, laches, which originally served as a guide when no statute of limitations controlled, can scarcely be described as a rule for interpreting a statutory prescription. . (3) MGM insists that the laches defense must be available to prevent a copyright owner from sitting still, doing nothing, waiting to see what the outcome of an alleged infringer’s investment will be. It is hardly incumbent on copyright owners, however, to challenge each and every actionable infringement. And there is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copyrighted work, has no effect on that work, or even complements it. Section 507(b)’s limitations period, coupled to the separate-accrual rule, allows a copyright owner to defer suit until she can estimate whether litigation is worth the candle. . (4) MGM is concerned that evidence needed or useful to defend against liability will be lost during a copyright owner’s inaction. But Congress must have been aware that the passage of time and the author’s death could cause evidentiary issues when it provided for reversionary renewal rights that an author’s heirs can exercise long after a work was written and copyrighted. Moreover, because a copyright plaintiff bears the burden of proving infringement, any hindrance caused by evidence unavailability is as likely to affect plaintiffs as defendants. The need for extrinsic evidence is also reduced by the registration mechanism, under which both the certificate and the original work must be on file with the Copyright Office before a copyright owner can sue for infringement. . (5) Finally, when a copyright owner engages in intentionally misleading representations concerning his abstention from suit, and the alleged infringer detrimentally relies on such deception, the doctrine of estoppel may bar the copyright owner’s claims completely, eliminating all potential remedies. The gravamen of estoppel, a defense long recognized as available in actions at law, is wrongdoing, overt misleading, and consequent loss. Estoppel does not undermine the statute of limitations, for it rests on misleading, whether engaged in early on, or later in time. P. 19. 2. While laches cannot be invoked to preclude adjudication of a claim for damages brought within the Act’s three-year window, in extraordinary circumstances, laches may, at the very outset of the litigation, curtail the relief equitably awarded. For example, where owners of a copyrighted architectural design, although aware of an allegedly infringing housing project, delayed suit until the project was substantially constructed and partially occupied, an order mandating destruction of the project would not be tolerable. See Chirco v. Crosswinds Communities, Inc., 474 F.3d 227, 236. Nor, in the face of an unexplained delay in commencing suit, would it be equitable to order “total destruction” of a book already printed, packed, and shipped. See New Era Publications Int’l v. Henry Holt & Co., 873 F.2d 576, 584–585. No such extraordinary circumstance is present here. Petrella notified MGM of her copyright claims before MGM invested millions of dollars in creating a new edition of Raging Bull, and the equitable relief she seeks—e.g., disgorgement of unjust gains and an injunction against future infringement—would not result in anything like “total destruction” of the film. Allowing Petrella’s suit to go forward will put at risk only a fraction of the income MGM has earned during the more than three decades Raging Bull has been marketed and will work no unjust hardship on innocent third parties. Should Petrella ultimately prevail on the merits, the District Court, in determining appropriate injunctive relief and assessing profits, may take account of Petrella’s delay in commencing suit. In doing so, however, the court must closely examine MGM’s alleged reliance on Petrella’s delay, taking account of MGM’s early knowledge of her claims, the protection MGM might have achieved through a declaratory judgment action, the extent to which MGM’s investment was protected by the separate-accrual rule, the court’s authority to order injunctive relief “on such terms as it may deem reasonable,” §502(a), and any other relevant considerations. . 695 F.3d 946, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Scalia, Thomas, Alito, Sotomayor, and Kagan, JJ., joined. Breyer, J., filed a dissenting opinion, in which Roberts, C. J., and Kennedy, J., joined.

The Copyright Act (Act) grants copyright protection to original works of authorship. From and after January 1, 1978, works are generally protected from the date of creation until 70 years after the author's death. For works copyrighted under the pre-1978 regime in which an initial period of protection may be followed by a renewal period, Congress provided that the author or authors of the work inherit the renewal rights. Petitioner Petrella (petrella) was the sole owner of the copyright in the 1963 screenplay registered in 1963. In 1998, seven years after filing for renewal of that copyright, Petrella informed respondent (MGM) that she had obtained the copyright to that screenplay. In 2002, Petrell filed a copyright infringement suit in Federal District Court, alleging that respondent had violated and continued to violate her copyright in that work by using, producing, and distributing a work she described as derivative of the 1963 screenplays. Petrella sought monetary and injunctive relief. She sought relief only for acts of infringement occurring on or after January 6, 2006. No relief can be awarded for infringing acts prior to that date. The District Court granted summary judgment to respondent on the ground that Petrella had unreasonably delayed suit by not filing until 2009, and further determined that MGM was prejudiced by the delay. The Court of Appeals affirmed. Held: 1. The equitable defense of laches (unreasonable, prejudicial delay in commencing suit) does not bar relief on copyright infringement claims brought within §507(b)s three-year limitations period. To the extent that an infringement suit seeks relief solely for conduct occurring within the limitations period, however, courts are not at liberty to jettison Congress' judgment on the timeliness of suit. Laches cannot be invoked to preclude adjudication of a claim for damages brought within that period. As to equitable relief, in extraordinary circumstances, laches may bar at the very threshold the particular relief requested by the plaintiff. Here, the courts below erroneously held that laches barred Petrella in its en-tirety, without regard to the currency of the conduct of which she complained. . 2. The laches defense is not available as a bar to Petrella's pursuit of legal remedies under 17 U. S. C. §504(b). The copyright statute of limitations, which provides for injunctions, impoundment and disposition of infringing articles, and only three years, of its occurrence, takes account of delay. Only by disregarding that feature of the statute, and the separate-accrual rule attending §507 (b), could the court presume that infringing acts occurring before January 6 do not bar all relief, monetary and injunction, but, on the facts thus far presented, there is no evident basis for immunizing Petrella from present and future uses of the copyrighted work, free from any obligation to pay royalties. Pp. 495 U.S. ___. 3. The courts below erred in disposing of Petrella based on laches. In failing to recognize that the copyright statute itself takes account of delay, the court erroneously summarily disposed of the case based on that statute. It is not clear whether laches is to bar in their entirety claims for discrete wrongs occurring within a federally prescribed limitations pe-riod. Moreover, equitable tolling, which lengthens the time for commencing a civil action in appropriate circumstances, applies when the plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim, and when the adjudication turns on the factfinder, i.e., the copyright owner, in comparing the copyright and the allegedly infringing works. Accordingly, the lower courts below did not reach the question whether evidentiary prejudice existed. Although laches are listed among affirmative defenses, along with, but discrete from, the statute of limitation, in Federal Rule of Civil Procedure 8(c), the Court has never applied laches to bar claims for discrete rights occurring in a federal statute of limitations. Nothing in this Court's precedent suggests a doctrineof such sweep... (a) Laches is a defense developed by equity courts, and remains to claims of an equitable cast for which the Legislature has provided no fixed time limitation. While equity courts have cautioned against invoking laches, such defenses do not undermine Congress' prescription, for they are based on misleading, whether engaged in early on, or later in time. See, e.g., Holmberg v. Armbrecht, 434. P.. P.. (b] A successful plaintiff can gain retrospective relief only 3 years back from the time of suit, but no recovery may be had for infringement in earlier years. No recovery, such as Petrella did in this case, can be had there for infringement of earlier years, and Profits made in those years remain the defendant's to keep.

2013_12-1117

https://www.oyez.org/cases/2013/12-1117

.[1]* The courts below denied qualified immunity for police officers who shot the driver of a fleeing vehicle to put an end to a dangerous car chase. We reverse and hold that the officers did not violate the Fourth Amendment. In the alternative, we conclude that the officers were entitled to qualified immunity because they violated no clearly established law. I A Because this case arises from the denial of the officers’ motion for summary judgment, we view the facts in the light most favorable to the nonmoving party, the daughter of the driver who attempted to flee. Wilkie v. Robbins, 551 U. S. 537 , n. 2 (2007). Near midnight on July 18, 2004, Lieutenant Joseph Forthman of the West Memphis, Arkansas, Police Department pulled over a white Honda Accord because the car had only one operating headlight. Donald Rickard was the driver of the Accord, and Kelly Allen was in the passenger seat. Forthman noticed an indentation, “ ‘roughly the size of a head or a basketball’ ” in the windshield of the car. Estate of Allen v. West Memphis, 2011 WL 197426, *1 (WD Tenn., Jan. 20, 2011). He asked Rickard if he had been drinking, and Rickard responded that he had not. Because Rickard failed to produce his driver’s license upon request and appeared nervous, Forthman asked him to step out of the car. Rather than comply with Forthman’s request, Rickard sped away. Forthman gave chase and was soon joined by five other police cruisers driven by Sergeant Vance Plumhoff and Officers Jimmy Evans, Lance Ellis, Troy Galtelli, and John Gardner. The officers pursued Rickard east on In-terstate 40 toward Memphis, Tennessee. While on I–40, they attempted to stop Rickard using a “rolling roadblock,” id., at *2, but they were unsuccessful. The District Court described the vehicles as “swerving through traffic at high speeds,” id., at *8, and respondent does not dispute that the cars attained speeds over 100 miles per hour.[2] See Memorandum of Law in Response to Defendants’ Motion for Summary Judgment in No. 2:05–cv–2585 (WD Tenn.), p. 16; see also Tr. of Oral Arg. 54:23–55:6. During the chase, Rickard and the officers passed more than two dozen vehicles. Rickard eventually exited I–40 in Memphis, and shortly afterward he made “a quick right turn,” causing “contact [to] occu[r]” between his car and Evans’ cruiser. 2011 WL 197426, *3. As a result of that contact, Rickard’s car spun out into a parking lot and collided with Plumhoff’s cruiser. Now in danger of being cornered, Rickard put his car into reverse “in an attempt to escape.” Ibid. As he did so, Evans and Plumhoff got out of their cruisers and approached Rickard’s car, and Evans, gun in hand, pounded on the passenger-side window. At that point, Rickard’s car “made contact with” yet another police cruiser. Ibid. Rickard’s tires started spinning, and his car “was rocking back and forth,” ibid., indicating that Rickard was using the accelerator even though his bumper was flush against a police cruiser. At that point, Plumhoff fired three shots into Rickard’s car. Rickard then “reversed in a 180 degree arc” and “maneuvered onto” another street, forcing Ellis to “step to his right to avoid the vehicle.” Ibid. As Rickard continued “fleeing down” that street, ibid., Gardner and Galtelli fired 12 shots toward Rickard’s car, bringing the total number of shots fired during this incident to 15. Rickard then lost control of the car and crashed into a building. Ibid. Rickard and Allen both died from some combination of gunshot wounds and injuries suffered in the crash that ended the chase. See App. 60, 76. B Respondent, Rickard’s surviving daughter, filed this action under Rev. Stat. §1979, 42 U. S. C. §1983, against the six individual police officers and the mayor and chief of police of West Memphis. She alleged that the officers used excessive force in violation of the Fourth and Fourteenth Amendments. The officers moved for summary judgment based on qualified immunity, but the District Court denied that motion, holding that the officers’ conduct violated the Fourth Amendment and was contrary to law that was clearly established at the time in question. The officers appealed, but a Sixth Circuit motions panel initially dismissed the appeal for lack of jurisdiction based on this Court’s decision in Johnson v. Jones, 515 U. S. 304, 309 (1995) . Later, however, that panel granted rehearing, vacated its dismissal order, and left the jurisdictional issue to be decided by a merits panel. The merits panel then affirmed the District Court’s decision on the merits. Estate of Allen v. West Memphis, 509 Fed. Appx. 388 (CA6 2012). On the issue of appellate jurisdiction, the merits panel began by stating that a “motion for qualified immunity denied on the basis of a district court’s determination that there exists a triable issue of fact generally cannot be appealed on an interlocutory basis.” Id., at 391. But the panel then noted that the Sixth Circuit had previously interpreted our decision in Scott v. Harris, 550 U. S. 372 (2007) , as creating an “exception to this rule” under which an immediate appeal may be taken to challenge “ ‘blatantly and demonstrably false’ ” factual determinations. 509 Fed. Appx., at 391 (quoting Moldowan v. Warren, 578 F. 3d 351, 370 (CA6 2009)). Concluding that none of the District Court’s fac-tual determinations ran afoul of that high standard, and distinguishing the facts of this case from those in Scott, the panel held that the officers’ conduct violated the Fourth Amendment. 509 Fed. Appx., at 392, and n. 3. The panel said nothing about whether the officers violated clearly established law, but since the panel affirmed the order denying the officers’ summary judgment motion,[3] the panel must have decided that issue in respondent’s favor. We granted certiorari. 571 U. S. ____ (2013). II We start with the question whether the Court of Appeals properly exercised jurisdiction under 28 U. S. C. §1291, which gives the courts of appeals jurisdiction to hear appeals from “final decisions” of the district courts. An order denying a motion for summary judgment is generally not a final decision within the meaning of §1291 and is thus generally not immediately appealable. Johnson, 515 U. S., at 309. But that general rule does not apply when the summary judgment motion is based on a claim of qualified immunity. Id., at 311; Mitchell v. Forsyth, 472 U. S. 511, 528 (1985) . “[Q]ualified immunity is ‘an immunity from suit rather than a mere defense to liability.’ ” Pearson v. Callahan, 555 U. S. 223, 231 (2009) (quoting Mitchell, supra, at 526). As a result, pretrial orders denying qualified immunity generally fall within the collateral order doctrine. See Ashcroft v. Iqbal, 556 U. S. 662 –672 (2009). This is so because such orders conclusively determine whether the defendant is entitled to immunity from suit; this immunity issue is both important and completely separate from the merits of the action, and this question could not be effectively reviewed on appeal from a final judgment because by that time the immunity from standing trial will have been irretrievably lost. See ibid; Johnson, supra, at 311–312 (citing Mitchell, supra, at 525–527). Respondent argues that our decision in Johnson, forecloses appellate jurisdiction under the circumstances here, but the order from which the appeal was taken in Johnson was quite different from the order in the present case. In Johnson, the plaintiff brought suit against certain police officers who, he alleged, had beaten him. 515 U. S., at 307. These officers moved for summary judgment, asserting that they were not present at the time of the alleged beating and had nothing to do with it. Id., at 307–308. The District Court determined, however, that the evidence in the summary judgment record was sufficient to support a contrary finding, and the court therefore denied the officers’ motion for summary judgment. Id., at 308. The officers then appealed, arguing that the District Court had not correctly analyzed the relevant evidence. Ibid. This Court held that the Johnson order was not immediately appealable because it merely decided “a question of ‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial.” Id., at 313. The Court noted that an order denying summary judgment based on a determination of “evidence sufficiency” does not present a legal question in the sense in which the term was used in Mitchell, the decision that first held that a pretrial order rejecting a claim of qualified immunity is immediately appealable. Johnson, 515 U. S., at 314. In addition, the Court observed that a determination of evidence sufficiency is closely related to other determinations that the trial court may be required to make at later stages of the case. Id., at 317. The Court also noted that appellate courts have “no comparative expertise” over trial courts in making such determinations and that forcing appellate courts to entertain appeals from such orders would impose an undue burden. Id., at 309–310, 316. The District Court order in this case is nothing like the order in Johnson. Petitioners do not claim that other officers were responsible for shooting Rickard; rather, they contend that their conduct did not violate the Fourth Amendment and, in any event, did not violate clearly established law. Thus, they raise legal issues; these issues are quite different from any purely factual issues that the trial court might confront if the case were tried; deciding legal issues of this sort is a core responsibility of appellate courts, and requiring appellate courts to decide such issues is not an undue burden. The District Court order here is not materially distinguishable from the District Court order in Scott v. Harris, and in that case we expressed no doubts about the jurisdiction of the Court of Appeals under §1291. Accordingly, here, as in Scott, we hold that the Court of Appeals prop-erly exercised jurisdiction, and we therefore turn to the merits. III A Petitioners contend that the decision of the Court of Appeals is wrong for two separate reasons. They maintain that they did not violate Rickard’s Fourth Amendment rights and that, in any event, their conduct did not violate any Fourth Amendment rule that was clearly established at the time of the events in question. When confronted with such arguments, we held in Saucier v. Katz, 533 U. S. 194, 200 (2001) , that “the first inquiry must be whether a constitutional right would have been violated on the facts alleged.” Only after deciding that question, we concluded, may an appellate court turn to the question whether the right at issue was clearly established at the relevant time. Ibid. We subsequently altered this rigid framework in Pearson, declaring that “Saucier’s procedure should not be regarded as an inflexible requirement.” 555 U. S., at 227. At the same time, however, we noted that the Saucier procedure “is often beneficial” because it “promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.” 555 U. S., at 236. Pearson concluded that courts “have the discretion to decide whether that [Sau-cier] procedure is worthwhile in particular cases.” Id., at 242. Heeding our guidance in Pearson, we begin in this case with the question whether the officers’ conduct violated the Fourth Amendment. This approach, we believe, will be “beneficial” in “develop[ing] constitutional precedent” in an area that courts typically consider in cases in which the defendant asserts a qualified immunity defense. See Pearson, supra, at 236. B A claim that law-enforcement officers used excessive force to effect a seizure is governed by the Fourth Amendment’s “reasonableness” standard. See Graham v. Connor, 490 U. S. 386 (1989) ; Tennessee v. Garner, 471 U. S. 1 (1985) . In Graham, we held that determining the objective reasonableness of a particular seizure under the Fourth Amendment “requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” 490 U. S., at 396 (internal quotation marks omitted). The inquiry requires analyzing the totality of the circumstances. See ibid. We analyze this question from the perspective “of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Ibid. We thus “allo[w] for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id., at 396–397. In this case, respondent advances two main Fourth Amendment arguments. First, she contends that the Fourth Amendment did not allow petitioners to use deadly force to terminate the chase. See Brief for Respondent 24–35. Second, she argues that the “degree of force was excessive,” that is, that even if the officers were permitted to fire their weapons, they went too far when they fired as many rounds as they did. See id., at 36–38. We address each issue in turn. 1 In Scott, we considered a claim that a police officer violated the Fourth Amendment when he terminated a high-speed car chase by using a technique that placed a “fleeing motorist at risk of serious injury or death.” 550 U. S., at 386. The record in that case contained a videotape of the chase, and we found that the events recorded on the tape justified the officer’s conduct. We wrote as follows: “Although there is no obvious way to quantify the risks on either side, it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase.” Id., at 383–384. We also wrote: “[R]espondent’s vehicle rac[ed] down narrow, two-lane roads in the dead of night at speeds that are shock-ingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit. We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up.” Id., at 379–380 (footnote omitted). In light of those facts, “we [thought] it [was] quite clear that [the police officer] did not violate the Fourth Amendment.” Id., at 381. We held that a “police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”[4] Id., at 386. We see no basis for reaching a different conclusion here. As we have explained supra, at ___, the chase in this case exceeded 100 miles per hour and lasted over five minutes. During that chase, Rickard passed more than two dozen other vehicles, several of which were forced to alter course. Rickard’s outrageously reckless driving posed a grave public safety risk. And while it is true that Rickard’s car eventually collided with a police car and came temporarily to a near standstill, that did not end the chase. Less than three seconds later, Rickard resumed maneuvering his car. Just before the shots were fired, when the front bumper of his car was flush with that of one of the police cruisers, Rickard was obviously pushing down on the accelerator because the car’s wheels were spinning, and then Rickard threw the car into reverse “in an attempt to escape.” Thus, the record conclusively disproves respondent’s claim that the chase in the present case was already over when petitioners began shooting. Under the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road. Rickard’s conduct even after the shots were fired—as noted, he managed to drive away despite the efforts of the police to block his path—underscores the point. In light of the circumstances we have discussed, it is beyond serious dispute that Rickard’s flight posed a grave public safety risk, and here, as in Scott, the police acted reasonably in using deadly force to end that risk. 2 We now consider respondent’s contention that, even if the use of deadly force was permissible, petitioners acted unreasonably in firing a total of 15 shots. We reject that argument. It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended. As petitioners noted below, “if lethal force is justified, officers are taught to keep shooting until the threat is over.” 509 Fed. Appx., at 392. Here, during the 10-second span when all the shots were fired, Rickard never abandoned his attempt to flee. Indeed, even after all the shots had been fired, he managed to drive away and to continue driving until he crashed. This would be a different case if petitioners had initiated a second round of shots after an initial round had clearly incapacitated Rickard and had ended any threat of continued flight, or if Rickard had clearly given himself up. But that is not what happened. In arguing that too many shots were fired, respondent relies in part on the presence of Kelly Allen in the front seat of the car, but we do not think that this factor changes the calculus. Our cases make it clear that “Fourth Amendment rights are personal rights which . . . may not be vicariously asserted.” Alderman v. United States, 394 U. S. 165, 174 (1969) ; see also Rakas v. Illinois, 439 U. S. 128 –143 (1978). Thus, the question before us is whether petitioners violated Rickard’s Fourth Amendment rights, not Allen’s. If a suit were brought on behalf of Allen under either §1983 or state tort law, the risk to Allen would be of central concern.[5] But Allen’s presence in the car cannot enhance Rickard’s Fourth Amendment rights. After all, it was Rickard who put Allen in danger by fleeing and refusing to end the chase, and it would be perverse if his disregard for Allen’s safety worked to his benefit. C We have held that petitioners’ conduct did not violate the Fourth Amendment, but even if that were not the case, petitioners would still be entitled to summary judgment based on qualified immunity. An official sued under §1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was “ ‘clearly established’ ” at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at 3). And a defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it. Id., at ___ (slip op., at 9). In other words, “existing precedent must have placed the statutory or constitutional question” confronted by the official “beyond debate.” Ibid. In addition, “[w]e have repeatedly told courts . . . not to define clearly established law at a high level of generality,” id., at ___ (slip op., at 10), since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced. We think our decision in Brosseau v. Haugen, 543 U. S. 194 (2004) (per curiam) squarely demonstrates that no clearly established law precluded petitioners’ conduct at the time in question. In Brosseau, we held that a police officer did not violate clearly established law when she fired at a fleeing vehicle to prevent possible harm to “other officers on foot who [she] believed were in the immediate area, . . . occupied vehicles in [the driver’s] path[,] and . . . any other citizens who might be in the area.” Id., at 197 (quoting 339 F. 3d 857, 865 (CA9 2003); internal quotation marks omitted). After surveying lower court decisions regarding the reasonableness of lethal force as a response to vehicular flight, we observed that this is an area “in which the result depends very much on the facts of each case” and that the cases “by no means ‘clearly establish[ed]’ that [the officer’s] conduct violated the Fourth Amendment.” 543 U. S., at 201. In reaching that conclusion, we held that Garner and Graham, which are “cast at a high level of generality,” did not clearly establish that the officer’s decision was unreasonable. 543 U. S., at 199. Brosseau makes plain that as of February 21, 1999—the date of the events at issue in that case—it was not clearly established that it was unconstitutional to shoot a fleeing driver to protect those whom his flight might endanger. We did not consider later decided cases because they “could not have given fair notice to [the officer].” Id., at 200, n. 4. To defeat immunity here, then, respondent must show at a minimum either (1) that the officers’ conduct in this case was materially different from the conduct in Brosseau or (2) that between February 21, 1999, and July 18, 2004, there emerged either “ ‘controlling authority’ ” or a “robust ‘consensus of cases of persuasive authority,’ ” al-Kidd, supra, at ___ (slip op., at 10) (quoting Wilson v. Layne, 526 U. S. 603, 617 (1999) ; some internal quotation marks omitted), that would alter our analysis of the qualified immunity question. Respondent has made neither showing. To begin, certain facts here are more favorable to the officers. In Brosseau, an officer on foot fired at a driver who had just begun to flee and who had not yet driven his car in a dangerous manner. In contrast, the officers here shot at Rickard to put an end to what had already been a lengthy, high-speed pursuit that indisputably posed a danger both to the officers involved and to any civilians who happened to be nearby. Indeed, the lone dissenting Justice in Brosseau emphasized that in that case, “there was no ongoing or prior high-speed car chase to inform the [constitutional] analysis.” 543 U. S., at 206, n. 4 (opinion of Stevens, J.). Attempting to distinguish Brosseau, respondent focuses on the fact that the officer there fired only 1 shot, whereas here three officers collectively fired 15 shots. But it was certainly not clearly established at the time of the shooting in this case that the number of shots fired, under the circumstances present here, rendered the use of force excessive. Since respondent cannot meaningfully distinguish Brosseau, her only option is to show that its analysis was out of date by 2004. Yet respondent has not pointed us to any case—let alone a controlling case or a robust consensus of cases—decided between 1999 and 2004 that could be said to have clearly established the unconstitutionality of using lethal force to end a high-speed car chase. And respondent receives no help on this front from the opinions below. The District Court cited only a single case decided between 1999 and 2004 that identified a possible constitutional violation by an officer who shot a fleeing driver, and the facts of that case—where a reasonable jury could have concluded that the suspect merely “accelerated to eighty to eighty-five miles per hour in a seventy-miles-per-hour zone” and did not “engag[e] in any evasive maneuvers,” Vaughan v. Cox, 343 F. 3d 1323, 1330–1331 (CA11 2003)—bear little resemblance to those here. * * * Under the circumstances present in this case, we hold that the Fourth Amendment did not prohibit petitioners from using the deadly force that they employed to terminate the dangerous car chase that Rickard precipitated. In the alternative, we note that petitioners are entitled to qualified immunity for the conduct at issue because they violated no clearly established law. 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.Notes 1 * joins the judgment and Parts I, II, and III–C of this opinion. joins this opinion except as to Part III–B–2. 2 It is also undisputed that Forthman saw glass shavings on the dashboard of Rickard’s car, a sign that the windshield had been broken recently; that another officer testified that the windshield indentation and glass shavings would have justified a suspicion “ ‘that someone had possibly been struck by that vehicle, like a pedestrian’ ”; and that Forthman saw beer in Rickard’s car. See App. 424–426 (Response to Defendant’s Statement of Undisputed Material Facts in No. 2:05–cv–2585 (WD Tenn.), ¶¶15–19). 3 After expressing some confusion about whether it should dismiss or affirm, the panel wrote that “it would seem that what we are doing is affirming [the District Court’s] judgment.” 509 Fed. Appx., at 393. 4 In holding that petitioners’ conduct violated the , the District Court relied on reasoning that is irreconcilable with our decision in . The District Court held that the danger presented by a high-speed chase cannot justify the use of deadly force because that danger was caused by the officers’ decision to continue the chase. v. , 2011 WL 197426, *8 (WD Tenn., Jan. 20, 2011). In , however, we declined to “lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger,” concluding that the Constitution “assuredly does not impose this invitation to impunity-earned-by-recklessness.” 550 U. S., at 385–386. 5 There seems to be some disagreement among lower courts as to whether a passenger in Allen’s situation can recover under a theory. Compare v. , 343 F. 3d 1323 (CA11 2003) (suggesting yes), and v. , 234 F. 3d 312 (CA6 2000) (same), with v. , 243 F. 3d 157 (CA4 2001) (suggesting no), and v. , 906 F. 2d 791 (CA1 1990) (same). We express no view on this question. We also note that in v. , , the Court held that a passenger killed as a result of a police chase could recover under a substantive due process theory only if the officer had “a purpose to cause harm unrelated to the legitimate object of arrest.”

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus PLUMHOFF et al. v. RICKARD, a minor child, individually, and as surviving daughter of RICKARD, DECEASED, by and through her mother RICKARD, as parent and next friend certiorari to the united states court of appeals for the sixth circuit No. 12–1117. Argued March 4, 2014—Decided May 27, 2014 Donald Rickard led police officers on a high-speed car chase that came to a temporary halt when Rickard spun out into a parking lot. Rickard resumed maneuvering his car, and as he continued to use the accelerator even though his bumper was flush against a patrol car, an officer fired three shots into Rickard’s car. Rickard managed to drive away, almost hitting an officer in the process. Officers fired 12 more shots as Rickard sped away, striking him and his passenger, both of whom died from some combination of gunshot wounds and injuries suffered when the car eventually crashed. Respondent, Rickard’s minor daughter, filed a 42 U. S. C. §1983 action, alleging that the officers used excessive force in violation of the Fourth and Fourteenth Amendments. The District Court denied the officers’ motion for summary judgment based on qualified immunity, holding that their conduct violated the Fourth Amendment and was contrary to clearly established law at the time in question. After finding that it had appellate jurisdiction, the Sixth Circuit held that the officers’ conduct violated the Fourth Amendment. It affirmed the District Court’s order, suggesting that it agreed that the officers violated clearly established law. Held: 1. The Sixth Circuit properly exercised jurisdiction under 28 U. S. C. §1291, which gives courts of appeals jurisdiction to hear appeals from “final decisions” of the district courts. The general rule that an order denying a summary judgment motion is not a “final decision[n],” and thus not immediately appealable, does not apply when it is based on a qualified immunity claim. Johnson v. Jones, 515 U.S. 304, 311. Respondent argues that Johnson forecloses appellate jurisdiction here, but the order in Johnson was not immediately appealable because it merely decided “a question of ‘evidence sufficiency,’ ” id., at 313, while here, petitioners’ qualified immunity claims raise legal issues quite different from any purely factual issues that might be confronted at trial. Deciding such legal issues is a core responsibility of appellate courts and does not create an undue burden for them. See, e.g., Scott v. Harris, 550 U.S. 372. . 2. The officers’ conduct did not violate the Fourth Amendment. . (a) Addressing this question first will be “beneficial” in “develop[ing] constitutional precedent” in an area that courts typically consider in cases in which the defendant asserts a qualified immunity defense, Pearson v. Callahan, 555 U.S. 223, 236. . (b) Respondent’s excessive-force argument requires analyzing the totality of the circumstances from the perspective “of a reasonable officer on the scene.” Graham v. Connor, 490 U.S. 386, 396. Respondent contends that the Fourth Amendment did not allow the officers to use deadly force to terminate the chase, and that, even if they were permitted to fire their weapons, they went too far when they fired as many rounds as they did. . (1) The officers acted reasonably in using deadly force. A “police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Scott, supra, at 385. Rickard’s outrageously reckless driving—which lasted more than five minutes, exceeded 100 miles per hour, and included the passing of more than two dozen other motorists—posed a grave public safety risk, and the record conclusively disproves that the chase was over when Rickard’s car came to a temporary standstill and officers began shooting. Under the circumstances when the shots were fired, all that a reasonable officer could have concluded from Rickard’s conduct was that he was intent on resuming his flight, which would again pose a threat to others on the road. . (2) Petitioners did not fire more shots than necessary to end the public safety risk. It makes sense that, if officers are justified in firing at a suspect in order to end a severe threat to public safety, they need not stop shooting until the threat has ended. Here, during the 10-second span when all the shots were fired, Rickard never abandoned his attempt to flee and eventually managed to drive away. A passenger’s presence does not bear on whether officers violated Rickard’s Fourth Amendment rights, which “are personal rights [that] may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174. . 3. Even if the officers’ conduct had violated the Fourth Amendment, petitioners would still be entitled to summary judgment based on qualified immunity. An official sued under §1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was “ ‘clearly established’ ” at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U. S. ___, ___. Brosseau v. Haugen, 543 U.S. 194, 201, where an officer shot at a fleeing vehicle to prevent possible harm, makes plain that no clearly established law precluded the officer’s conduct there. Thus, to prevail, respondent must meaningfully distinguish Brosseau or point to any “controlling authority” or “robust ‘consensus of cases of persuasive authority,’ ” al-Kidd, supra, at ___, that emerged between the events there and those here that would alter the qualified-immunity analysis. Respondent has made neither showing. If anything, the facts here are more favorable to the officers than the facts in Brosseau; and respondent points to no cases that could be said to have clearly established the unconstitutionality of using lethal force to end a high-speed car chase. . 509 Fed. Appx. 388, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Sotomayor, and Kagan, JJ., joined, in which Ginsburg, J., joined as to the judgment and Parts I, II, and III–C, and in which Breyer, J., joined except as to Part III–B–2.

Respondent, the daughter of the driver of a fleeing vehicle, filed an action in Federal District Court against the police department and the city of Memphis, alleging that the officers used excessive force in pursuit of her father and, in violation of the Fourth and Fourteenth Amendments. The District Court denied a motion for summary judgment based on a claim of qualified immunity, and the Court of Appeals affirmed. Held: The officers did not violate the Fourth Amendment. . (a) A pretrial order denying qualified immunity generally falls within the collateral order doctrine because such orders conclusively determine whether the defendant is entitled to immunity from suit; this immunity issue is both important and completely separate from the merits of the action, and this question could not be effectively reviewed on appeal from a final judgment because by that time the immunity from standing trial will have been irretrievably lost. Johnson v. Robbins, 515 U. S. 304, 309; Mitchell v. Forsyth,. Here, the record conclusively disproves respondent's claim that the chase was already over when petitioners began shooting. Under the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that the father was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road. His conduct even after the shots had been fired did not abandon his attempt to flee, and he managed to drive away and continue driving until he crashed and died. P.. (b) There is no basis for reaching a different conclusion here. The Fourth Amendment did not prohibit petitioners from using the deadly force that they employed to terminate the dangerous car chase that precipitated. In the alternative, petitioners are entitled to qualified immunity for the conduct at issue because they violated no clearly established law. See, e.g., Brosseau v. Haugen, 543 U.S. 194 (per curiam), which held that the danger presented by a high-speed chase cannot justify the use of deadly force because that danger was caused by the officers' decision to continue the chase. However, to defeat immunity here, respondent must show at a minimum either (1) that the fathers were present at the time of the shooting, or (2) that they were materially different from the fathers. This Court will not lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people in danger. Although, if lethal force is justified, officers are taught to keep shooting until the threat has ended, this is an area in which the result depends very much on the facts of each case and that the cases by no means clearly establish[ed] that the officer's conduct violated the Fourth... (c) This Court has previously held that petitioners did not use excessive force to effect a seizure, but the circumstances present in this case clearly demonstrate that no clearly established law precluded petitioners. Cf. Saucier v. Katz. It is undisputed that Rickard saw glass shavings on the dashboard of Rickard's car, a sign that the windshield had been broken recently; that another officer testified that the car's wheels were spinning and then Rickard threw the car into reverse in an attempt to escape; and that Forthman saw beer in Rickard.. Reversed and remanded. 509 Fed. Appx. 388 (CA6 2012). POWELL, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined, and in Parts I, II, and III-C of this opinion. STEWART J., filed an opinion concurring in part and dissenting in part, post, p..

2013_12-761

https://www.oyez.org/cases/2013/12-761

. POM Wonderful LLC makes and sells pomegranate juice products, including a pomegranate-blueberry juice blend. App. 23a. One of POM’s competitors is the Coca-Cola Company. Coca-Cola’s Minute Maid Division makes a juice blend sold with a label that, in describing the contents, displays the words “pomegranate blueberry” with far more prominence than other words on the label that show the juice to be a blend of five juices. In truth, the Coca-Cola product contains but 0.3% pomegranate juice and 0.2% blueberry juice. Alleging that the use of that label is deceptive and misleading, POM sued Coca-Cola under §43 of the Lanham Act. 60Stat. 441, as amended, 15 U. S. C. §1125. That provision allows one competitor to sue another if it alleges unfair competition arising from false or misleading product descriptions. The Court of Appeals for the Ninth Circuit held that, in the realm of labeling for food and beverages, a Lanham Act claim like POM’s is precluded by a second federal statute. The second statute is the Federal Food, Drug, and Cosmetic Act (FDCA), which forbids the misbranding of food, including by means of false or misleading labeling. §§301, 403, 52Stat. 1042, 1047, as amended, 21 U. S. C. §§331, 343. The ruling that POM’s Lanham Act cause of action is precluded by the FDCA was incorrect. There is no statutory text or established interpretive principle to support the contention that the FDCA precludes Lanham Act suits like the one brought by POM in this case. Nothing in the text, history, or structure of the FDCA or the Lanham Act shows the congressional purpose or design to forbid these suits. Quite to the contrary, the FDCA and the Lanham Act complement each other in the federal regulation of misleading food and beverage labels. Competitors, in their own interest, may bring Lanham Act claims like POM’s that challenge food and beverage labels that are regulated by the FDCA. I A This case concerns the intersection and complementar-ity of these two federal laws. A proper beginning point is a description of the statutes. Congress enacted the Lanham Act nearly seven decades ago. See 60Stat. 427 (1946). As the Court explained earlier this Term, it “requires no guesswork” to ascertain Congress’ intent regarding this federal law, for Congress included a “detailed statement of the statute’s purposes.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. ___, ___ (2014) (slip op., at 12). Section 45 of the Lanham Act provides: “The intent of this chapter is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect registered marks used in such commerce from interference by State, or territorial legislation; to protect persons engaged in such commerce against unfair competition; to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks; and to provide rights and remedies stipulated by treaties and conventions respecting trademarks, trade names, and unfair competition entered into between the United States and foreign nations.” 15 U. S. C. §1127. The Lanham Act’s trademark provisions are the primary means of achieving these ends. But the Act also creates a federal remedy “that goes beyond trademark protection.” Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U. S. 23, 29 (2003) . The broader remedy is at issue here. The Lanham Act creates a cause of action for unfair competition through misleading advertising or labeling. Though in the end consumers also benefit from the Act’s proper enforcement, the cause of action is for competitors, not consumers. The term “competitor” is used in this opinion to indicate all those within the class of persons and entities protected by the Lanham Act. Competitors are within the class that may invoke the Lanham Act because they may suffer “an injury to a commercial interest in sales or business reputation proximately caused by [a] defendant’s misrepresentations.” Lexmark, supra, at ___ (slip op., at 22). The petitioner here asserts injury as a competitor. The cause of action the Act creates imposes civil liability on any person who “uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which . . . misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities.” 15 U. S. C. §1125(a)(1). As the Court held this Term, the private remedy may be invoked only by those who “allege an injury to a commercial interest in reputation or sales. A consumer who is hoodwinked into purchasing a disappointing product may well have an injury-in-fact cognizable under Article III, but he cannot invoke the protection of the Lanham Act.” Lexmark, 572 U. S., at ___ (slip op., at 13). This principle reflects the Lanham Act’s purpose of “ ‘protect[ing] persons engaged in [commerce within the control of Congress] against unfair competition.’ ” Id., at ___ (slip op., at 12). POM’s cause of action would be straightforward enough but for Coca-Cola’s contention that a separate federal statutory regime, the FDCA, allows it to use the label in question and in fact precludes the Lanham Act claim. So the FDCA is the second statute to be discussed. The FDCA statutory regime is designed primarily to protect the health and safety of the public at large. See 62 Cases of Jam v. United States, 340 U. S. 593, 596 (1951) ; FDCA, §401, 52Stat. 1046, 21 U. S. C. §341 (agency may issue certain regulations to “promote honesty and fair dealing in the interest of consumers”). The FDCA prohibits the misbranding of food and drink. 21 U. S. C. §§321(f), 331. A food or drink is deemed misbranded if, inter alia, “its labeling is false or misleading,” §343(a), information required to appear on its label “is not prominently placed thereon,” §343(f), or a label does not bear “the common or usual name of the food, if any there be,” §343(i). To implement these provisions, the Food and Drug Administration (FDA) promulgated regulations regarding food and beverage labeling, including the labeling of mixes of different types of juice into one juice blend. See 21 CFR §102.33 (2013). One provision of those regulations is particularly relevant to this case: If a juice blend does not name all the juices it contains and mentions only juices that are not predominant in the blend, then it must either declare the percentage content of the named juice or “[i]ndicate that the named juice is present as a flavor or flavoring,” e.g., “raspberry and cranberry flavored juice drink.” §102.33(d). The Government represents that the FDA does not preapprove juice labels under these regulations. See Brief for United States as Amicus Curiae in Opposition 16. That contrasts with the FDA’s regulation of other types of labels, such as drug labels, see 21 U. S. C. §355(d), and is consistent with the less extensive role the FDA plays in the regulation of food than in the regulation of drugs. Unlike the Lanham Act, which relies in substantial part for its enforcement on private suits brought by injured competitors, the FDCA and its regulations provide the United States with nearly exclusive enforcement author-ity, including the authority to seek criminal sanctions in some circumstances. 21 U. S. C. §§333(a), 337. Private parties may not bring enforcement suits. §337. Also unlike the Lanham Act, the FDCA contains a provision pre-empting certain state laws on misbranding. That provision, which Congress added to the FDCA in the Nutrition Labeling and Education Act of 1990, §6, 104Stat. 2362–2364, forecloses a “State or political subdivision of a State” from establishing requirements that are of the type but “not identical to” the requirements in some of the misbranding provisions of the FDCA. 21 U. S. C. §343–1(a). It does not address, or refer to, other federal statutes or the preclusion thereof. B POM Wonderful LLC is a grower of pomegranates anda distributor of pomegranate juices. Through its POM Wonderful brand, POM produces, markets, and sells a variety of pomegranate products, including a pomegranate-blueberry juice blend. App. 23a. POM competes in the pomegranate-blueberry juice market with the Coca-Cola Company. Coca-Cola, under its Minute Maid brand, created a juice blend containing 99.4% apple and grape juices, 0.3% pomegranate juice, 0.2% blueberry juice, and 0.1% raspberry juice. Id., at 38a; Brief for Respondent 8. Despite the minuscule amount of pomegranate and blueberry juices in the blend, the front label of the Coca-Cola product displays the words “pomegranate blueberry” in all capital letters, on two separate lines. App. 38a. Below those words, Coca-Cola placed the phrase “flavored blend of 5 juices” in much smaller type. Ibid. And below that phrase, in still smaller type, were the words “from concentrate with added ingredients”—and, with a line break before the final phrase— “and other natural flavors.” Ibid. The product’s front label also displays a vignette of blueberries, grapes, and raspberries in front of a halved pomegranate and a halved apple. Ibid. Claiming that Coca-Cola’s label tricks and deceives consumers, all to POM’s injury as a competitor, POM brought suit under the Lanham Act. POM alleged that the name, label, marketing, and advertising of Coca-Cola’s juice blend mislead consumers into believing the product consists predominantly of pomegranate and blueberry juice when it in fact consists predominantly of less expensive apple and grape juices. Id., at 27a. That confusion, POM complained, causes it to lose sales. Id., at 28a. POM sought damages and injunctive relief. Id., at 32a–33a. The District Court granted partial summary judgment to Coca-Cola on POM’s Lanham Act claim, ruling that the FDCA and its regulations preclude challenges to the name and label of Coca-Cola’s juice blend. The District Court reasoned that in the juice blend regulations the “FDA has directly spoken on the issues that form the basis of Pom’s Lanham Act claim against the naming and labeling of” Coca-Cola’s product, but has not prohibited any, and indeed expressly has permitted some, aspects of Coca-Cola’s label. 727 F. Supp. 2d 849, 871–873 (CD Cal. 2010). The Court of Appeals for the Ninth Circuit affirmed in relevant part. Like the District Court, the Court of Appeals reasoned that Congress decided “to entrust matters of juice beverage labeling to the FDA”; the FDA has promulgated “comprehensive regulation of that labeling”; and the FDA “apparently” has not imposed the requirements on Coca-Cola’s label that are sought by POM. 679 F. 3d 1170, 1178 (2012). “[U]nder [Circuit] precedent,” the Court of Appeals explained, “for a court to act when the FDA has not—despite regulating extensively in this area—would risk undercutting the FDA’s expert judgments and authority.” Id., at 1177. For these reasons, and “[o]utof respect for the statutory and regulatory scheme,” the Court of Appeals barred POM’s Lanham Act claim. Id., at 1178. II A This Court granted certiorari to consider whether a private party may bring a Lanham Act claim challenging a food label that is regulated by the FDCA. 571 U. S. ___ (2014). The answer to that question is based on the following premises. First, this is not a pre-emption case. In pre-emption cases, the question is whether state law is pre-empted by a federal statute, or in some instances, a federal agency action. See Wyeth v. Levine, 555 U. S. 555, 563 (2009) . This case, however, concerns the alleged preclusion of a cause of action under one federal statute by the provisions of another federal statute. So the state-federal balance does not frame the inquiry. Because this is a preclusion case, any “presumption against pre-emption,” id., at 565, n. 3, has no force. In addition, the preclusion analysis is not governed by the Court’s complex categorization of the types of pre-emption. See Crosby v. National Foreign Trade Council, 530 U. S. 363 –373 (2000). Although the Court’s pre-emption precedent does not govern preclusion analysis in this case, its principles are instructive insofar as they are designed to assess the interaction of laws that bear on the same subject. Second, this is a statutory interpretation case and the Court relies on traditional rules of statutory interpretation. That does not change because the case involves multiple federal statutes. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 –139 (2000). Nor does it change because an agency is involved. See ibid. Analysis of the statutory text, aided by established principles of interpretation, controls. See Chickasaw Nation v. United States, 534 U. S. 84, 94 (2001) . A principle of interpretation is “often countered, of course, by some maxim pointing in a different direction.” Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115 (2001) . It is thus unsurprising that in this case a threshold dispute has arisen as to which of two competing maxims establishes the proper framework for decision. POM argues that this case concerns whether one statute, the FDCA as amended, is an “implied repeal” in part of an-other statute, i.e., the Lanham Act. See, e.g., Carcieri v. Salazar, 555 U. S. 379, 395 (2009) . POM contends that in such cases courts must give full effect to both statutes unless they are in “irreconcilable conflict,” see ibid., and that this high standard is not satisfied here. Coca-Cola resists this canon and its high standard. Coca-Cola argues that the case concerns whether a more specific law, the FDCA, clarifies or narrows the scope of a more general law, the Lanham Act. See, e.g., United States v. Fausto, 484 U. S. 439, 453 (1988) ; Brief for Respondent 18. The Court’s task, it claims, is to “reconcil[e]” the laws, ibid., and it says the best reconciliation is that the more specific provisions of the FDCA bar certain causes of action authorized in a general manner by the Lanham Act. The Court does not need to resolve this dispute. Even assuming that Coca-Cola is correct that the Court’s task is to reconcile or harmonize the statutes and not, as POM urges, to enforce both statutes in full unless there is a genuinely irreconcilable conflict, Coca-Cola is incorrect that the best way to harmonize the statutes is to bar POM’s Lanham Act claim. B Beginning with the text of the two statutes, it must be observed that neither the Lanham Act nor the FDCA, in express terms, forbids or limits Lanham Act claims challenging labels that are regulated by the FDCA. By its terms, the Lanham Act subjects to suit any person who “misrepresents the nature, characteristics, qualities, or geographic origin” of goods or services. 15 U. S. C. §1125(a). This comprehensive imposition of liability extends, by its own terms, to misrepresentations on labels, including food and beverage labels. No other provision in the Lanham Act limits that understanding or purports to govern the relevant interaction between the Lanham Act and the FDCA. And the FDCA, by its terms, does not preclude Lanham Act suits. In consequence, food and beverage labels regulated by the FDCA are not, under the terms of either statute, off limits to Lanham Act claims. No textual provision in either statute discloses a purpose to bar unfair competition claims like POM’s. This absence is of special significance because the Lanham Act and the FDCA have coexisted since the passage of the Lanham Act in 1946. 60Stat. 427 (1946); ch. 675, 52Stat. 1040 (1938). If Congress had concluded, in light of experience, that Lanham Act suits could interfere with the FDCA, it might well have enacted a provision addressing the issue during these 70 years. See Wyeth, supra, at 574 (“If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA’s 70-year history”). Congress enacted amendments to the FDCA and the Lanham Act, see, e.g., Nutrition Labeling and Education Act of 1990, 104Stat. 2353; Trademark Law Revision Act of 1988, §132, 102Stat. 3946, including an amendment that added to the FDCA an express pre-emption provision with respect to state laws addressing food and beverage misbranding, §6, 104Stat. 2362. Yet Congress did not enact a provision addressing the preclusion of other federal laws that might bear on food and beverage labeling. This is “powerful evidence that Congress did not intend FDA oversight to be the exclusive means” of ensuring proper food and beverage labeling. See Wyeth, 555 U. S., at 575. Perhaps the closest the statutes come to addressing the preclusion of the Lanham Act claim at issue here is the pre-emption provision added to the FDCA in 1990 as part of the Nutrition Labeling and Education Act. See 21 U. S. C. §343–1. But, far from expressly precluding suits arising under other federal laws, the provision if anything suggests that Lanham Act suits are not precluded. This pre-emption provision forbids a “State or political subdivision of a State” from imposing requirements that are of the type but “not identical to” corresponding FDCA requirements for food and beverage labeling. Ibid. It is significant that the complex pre-emption provision distinguishes among different FDCA requirements. It forbids state-law requirements that are of the type but not identical to only certain FDCA provisions with respect to food and beverage labeling. See §§343–1(a)(1)–(5) (citing some but not all of the subsections of §343); §6, 104Stat. 2362–2364 (codified at 21 U. S. C. §343–1, and note following). Just as significant, the provision does not refer to requirements imposed by other sources of law, such as federal statutes. For purposes of deciding whether the FDCA displaces a regulatory or liability scheme in another statute, it makes a substantial difference whether that other statute is state or federal. By taking care to mandate express pre-emption of some state laws, Congress if anything indicated it did not intend the FDCA to preclude requirements arising from other sources. See Setser v. United States, 566 U. S. ___, ___ (2012) (slip op., at 6–7) (applying principle of expressio unius est exclusio alterius). Pre-emption of some state requirements does not suggest an intent to preclude federal claims. The structures of the FDCA and the Lanham Act reinforce the conclusion drawn from the text. When two statutes complement each other, it would show disregard for the congressional design to hold that Congress nonetheless intended one federal statute to preclude the operation of the other. See J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U. S. 124, 144 (2001) (“[W]e can plainly regard each statute as effective because of its different requirements and protections”); see also Wyeth, supra, at 578–579. The Lanham Act and the FDCA complement each other in major respects, for each has its own scope and purpose. Although both statutes touch on food and beverage labeling, the Lanham Act protects commercial interests against unfair competition, while the FDCA protects public health and safety. Compare Lexmark, 572 U. S., at ___ (slip op., at 12–13), with 62 Cases of Jam, 340 U. S., at 596. The two statutes impose “different requirements and protections.” J. E. M. Ag Supply, supra, at 144. The two statutes complement each other with respect to remedies in a more fundamental respect. Enforcement of the FDCA and the detailed prescriptions of its implementing regulations is largely committed to the FDA. The FDA, however, does not have the same perspective or expertise in assessing market dynamics that day-to-day competitors possess. Competitors who manufacture or distribute products have detailed knowledge regarding how consumers rely upon certain sales and marketing strategies. Their awareness of unfair competition prac-tices may be far more immediate and accurate than that of agency rulemakers and regulators. Lanham Act suits draw upon this market expertise by empowering private parties to sue competitors to protect their interests on a case-by-case basis. By “serv[ing] a distinct compensatory function that may motivate injured persons to come forward,” Lanham Act suits, to the extent they touch on the same subject matter as the FDCA, “provide incentives” for manufacturers to behave well. See id., at 579. Allowing Lanham Act suits takes advantage of synergies among multiple methods of regulation. This is quite consistent with the congressional design to enact two different statutes, each with its own mechanisms to enhance the protection of competitors and consumers. A holding that the FDCA precludes Lanham Act claims challenging food and beverage labels would not only ignore the distinct functional aspects of the FDCA and the Lanham Act but also would lead to a result that Congress likely did not intend. Unlike other types of labels regu-lated by the FDA, such as drug labels, see 21 U. S. C. §355(d), it would appear the FDA does not preapprove food and beverage labels under its regulations and instead relies on enforcement actions, warning letters, and other measures. See Brief for United States as Amicus Curiae in Opposition 16. Because the FDA acknowledges that it does not necessarily pursue enforcement measures regarding all objectionable labels, ibid., if Lanham Act claims were to be precluded then commercial interests—and indirectly the public at large—could be left with less effective protection in the food and beverage labeling realm than in many other, less regulated industries. It is un-likely that Congress intended the FDCA’s protection of health and safety to result in less policing of misleading food and beverage labels than in competitive markets for other products. C Coca-Cola argues the FDCA precludes POM’s Lanham Act claim because Congress intended national uniformity in food and beverage labeling. Coca-Cola notes three aspects of the FDCA to support that position: delegation of enforcement authority to the Federal Government rather than private parties; express pre-emption with respect to state laws; and the specificity of the FDCA and its implementing regulations. But these details of the FDCA do not establish an intent or design to preclude Lanham Act claims. Coca-Cola says that the FDCA’s delegation of enforcement authority to the Federal Government shows Congress’ intent to achieve national uniformity in labeling. But POM seeks to enforce the Lanham Act, not the FDCA or its regulations. The centralization of FDCA enforcement authority in the Federal Government does not indicate that Congress intended to foreclose private enforcement of other federal statutes. Coca-Cola next appeals to the pre-emption provision added to the FDCA in 1990. See §343–1. It argues that allowing Lanham Act claims to proceed would undermine the pre-emption provision’s goal of ensuring that food and beverage manufacturers can market nationally without the burden of complying with a patchwork of requirements. A significant flaw in this argument is that the pre-emption provision by its plain terms applies only to certain state-law requirements, not to federal law. See Part II–B, supra. Coca-Cola in effect asks the Court to ignore the words “State or political subdivision of a State” in the statute. Even if it were proper to stray from the text in this way, it is far from clear that Coca-Cola’s assertions about national uniformity in fact reflect the congressional design. Although the application of a federal statute such as the Lanham Act by judges and juries in courts throughout the country may give rise to some variation in outcome, this is the means Congress chose to enforce a national policy to ensure fair competition. It is quite different from the disuniformity that would arise from the multitude of state laws, state regulations, state administrative agency rulings, and state-court decisions that are partially forbidden by the FDCA’s pre-emption provision. Congress not infrequently permits a certain amount of variability by authorizing a federal cause of action even in areas of law where national uniformity is important. Compare Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 162 (1989) (“One of the fundamental purposes behind the Patent and Copyright Clauses of the Constitution was to promote national uniformity in the realm of intellectual property”), with 35 U. S. C. §281 (private right of action for patent infringement); see Wyeth, 555 U. S., at 570 (“[T]he [FDCA] contemplates that federal juries will resolve most misbranding claims”). The Lanham Act itself is an example of this design: Despite Coca-Cola’s protestations, the Act is uniform in extending its protection against unfair competition to the whole class it describes. It is variable only to the extent that those rights are enforced on a case-by-case basis. The variability about which Coca-Cola complains is no different than the variability that any industry covered by the Lanham Act faces. And, as noted, Lanham Act actions are a means to implement a uniform policy to prohibit unfair competition in all covered markets. Finally, Coca-Cola urges that the FDCA, and particu-larly its implementing regulations, addresses food and bev-erage labeling with much more specificity than is foundin the provisions of the Lanham Act. That is true. The pages of FDA rulemakings devoted only to juice-blend labeling attest to the level of detail with which the FDA has examined the subject. E.g., Food Labeling; Declaration of Ingredients; Common or Usual Name for Nonstandardized Foods; Diluted Juice Beverages, 58 Fed. Reg. 2897–2926 (1993). Because, as we have explained, the FDCA and the Lanham Act are complementary and have separate scopes and purposes, this greater specificity would matter only if the Lanham Act and the FDCA cannot be implemented in full at the same time. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U. S. ___, ___ (2012) (slip op., at 5–7). But neither the statutory structure nor the empirical evidence of which the Court is aware indicates there will be any difficulty in fully enforcing each statute according to its terms. See Part II–B, supra. D The Government disagrees with both Coca-Cola and POM. It submits that a Lanham Act claim is precluded “to the extent the FDCA or FDA regulations specifically require or authorize the challenged aspects of [the] label.” Brief for United States as Amicus Curiae 11. Applying that standard, the Government argues that POM may not bring a Lanham Act challenge to the name of Coca-Cola’s product, but that other aspects of the label may be challenged. That is because, the Government argues, the FDA regulations specifically authorize the names of juice blends but not the other aspects of the label that are at issue. In addition to raising practical concerns about drawing a distinction between regulations that “specifically . . . authorize” a course of conduct and those that merely tolerate that course, id., at 10–11, the flaw in the Government’s intermediate position is the same as that in Coca-Cola’s theory of the case. The Government assumes that the FDCA and its regulations are at least in some circumstances a ceiling on the regulation of food and beverage labeling. But, as discussed above, Congress intended the Lanham Act and the FDCA to complement each other with respect to food and beverage labeling. The Government claims that the “FDA’s juice-naming regulation reflects the agency’s ‘weigh[ing of] the competing interests relevant to the particular requirement in question.’ ” Id., at 19 (quoting Medtronic, Inc. v. Lohr, 518 U. S. 470, 501 (1996) ). The rulemaking indeed does allude, at one point, to a balancing of interests: It styles a particular requirement as “provid[ing] manufacturers with flexibility for labeling products while providing consumers with information that they need.” 58 Fed. Reg. 2919–2920. But that rulemaking does not discuss or even cite the Lanham Act, and the Government cites no other statement in the rulemaking suggesting that the FDA considered the full scope of the interests the Lanham Act protects. In addition, and contrary to the language quoted above, the FDA explicitly encouraged manufacturers to include material on their labels that is not required by the regulations. Id., at 2919. A single isolated reference to a desire for flexibility is not sufficient to transform a rulemaking that is otherwise at best inconclusive as to its interaction with other federal laws into one with preclusive force, even on the assumption that a federal regulation in some instances might preclude application of a federal statute. Cf. Williamson v. Mazda Motor of Amer-ica, Inc., 562 U. S. ___, ___ (2011) (slip op., at 10–11). In addition, Geier v. American Honda Motor Co., 529 U. S. 861 (2000) , does not support the Government’s argument. In Geier, the agency enacted a regulation deliberately allowing manufacturers to choose between different options because the agency wanted to encourage diversity in the industry. A subsequent lawsuit challenged one of those choices. The Court concluded that the action was barred because it directly conflicted with the agency’s policy choice to encourage flexibility to foster innovation. Id., at 875. Here, by contrast, the FDA has not made a policy judgment that is inconsistent with POM’s Lanham Act suit. This is not a case where a lawsuit is undermining an agency judgment, and in any event the FDA does not have authority to enforce the Lanham Act. It is necessary to recognize the implications of the United States’ argument for preclusion. The Government asks the Court to preclude private parties from availing themselves of a well-established federal remedy because an agency enacted regulations that touch on similar subject matter but do not purport to displace that remedy or even implement the statute that is its source. Even if agency regulations with the force of law that purport to bar other legal remedies may do so, see id., at 874; see also Wyeth, 555 U. S., at 576, it is a bridge too far to accept an agency’s after-the-fact statement to justify that result here. An agency may not reorder federal statutory rights without congressional authorization. * * * Coca-Cola and the United States ask the Court to elevate the FDCA and the FDA’s regulations over the private cause of action authorized by the Lanham Act. But the FDCA and the Lanham Act complement each other in the federal regulation of misleading labels. Congress did not intend the FDCA to preclude Lanham Act suits like POM’s. The position Coca-Cola takes in this Court that because food and beverage labeling is involved it has no Lanham Act liability here for practices that allegedly mislead and trick consumers, all to the injury of competitors, finds no support in precedent or the statutes. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Breyer took no part in the consideration or decision of this case.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus POM WONDERFUL LLC v. COCA-COLA CO. certiorari to the united states court of appeals for the ninth circuit No. 12–761. Argued April 21, 2014—Decided June 12, 2014 This case involves the intersection of two federal statutes. The Lanham Act permits one competitor to sue another for unfair competition arising from false or misleading product descriptions. 15 U. S. C. §1125. The Federal Food, Drug, and Cosmetic Act (FDCA) prohibits the misbranding of food and drink. 21 U. S. C. §§321(f), 331. To implement the FDCA’s provisions, the Food and Drug Administration (FDA) has promulgated regulations regarding food and beverage labeling, including one concerning juice blends. Unlike the Lanham Act, which, relies in large part for its enforcement on private suits brought by injured competitors, the FDCA and its regulations give the United States nearly exclusive enforcement authority and do not permit private enforcement suits. The FDCA also pre-empts certain state misbranding laws. Petitioner POM Wonderful LLC, which produces, markets, and sells, inter alia, a pomegranate-blueberry juice blend, filed a Lanham Act suit against respondent Coca-Cola Company, alleging that the name, label, marketing, and advertising of one of Coca-Cola’s juice blends mislead consumers into believing the product consists predominantly of pomegranate and blueberry juice when it in fact consists predominantly of less expensive apple and grape juices, and that the ensuing confusion causes POM to lose sales. The District Court granted partial summary judgment to Coca-Cola, ruling that the FDCA and its regulations preclude Lanham Act challenges to the name and label of Coca-Cola’s juice blend. The Ninth Circuit affirmed in relevant part. Held: Competitors may bring Lanham Act claims like POM’s challenging food and beverage labels regulated by the FDCA. . (a) This result is based on the following premises. First, this is not a pre-emption case, for it does not raise the question whether state law is pre-empted by a federal law, see Wyeth v. Levine, 555 U.S. 555, 563, but instead concerns the alleged preclusion of a cause of action under one federal statute by the provisions of another federal statute. Pre-emption principles may nonetheless be instructive insofar as they are designed to assess the interaction of laws bearing on the same subject. Second, this is a statutory interpretation case; and analysis of the statutory text, aided by established interpretation rules, controls. See Chickasaw Nation v. United States, 534 U.S. 84, 94. While a principle of interpretation may be countered “by some maxim pointing in a different direction,” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115, this Court need not decide what maxim establishes the proper framework here: Even assuming that Coca-Cola is correct that the Court’s task is to reconcile or harmonize the statutes instead of to determine whether one statute is an implied repeal in part of another statute, Coca-Cola is incorrect that the best way to do that is to bar POM’s Lanham Act claim. . (b) Neither the Lanham Act nor the FDCA, in express terms, forbids or limits Lanham Act claims challenging labels that are regulated by the FDCA. The absence of such a textual provision when the Lanham Act and the FDCA have coexisted for over 70 years is “powerful evidence that Congress did not intend FDA oversight to be the exclusive means” of ensuring proper food and beverage labeling. See Wyeth, supra, at 575. In addition, and contrary to Coca-Cola’s argument, Congress, by taking care to pre-empt only some state laws, if anything indicated it did not intend the FDCA to preclude requirements arising from other sources. See Setser v. United States, 566 U. S. ___, ___. The structures of the FDCA and the Lanham Act reinforce this conclusion. Where two statutes are complementary, it would show disregard for the congressional design to hold that Congress intended one federal statute nonetheless to preclude the operation of the other. See J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 144. The Lanham Act and the FDCA complement each other in major respects, for each has its own scope and purpose. Both touch on food and beverage labeling, but the Lanham Act protects commercial interests against unfair competition, while the FDCA protects public health and safety. They also complement each other with respect to remedies. The FDCA’s enforcement is largely committed to the FDA, while the Lanham Act empowers private parties to sue competitors to protect their interests on a case-by-case basis. Allowing Lanham Act suits takes advantage of synergies among multiple methods of regulation. A holding that the FDCA precludes Lanham Act claims challenging food and beverage labels also could lead to a result that Congress likely did not intend. Be-cause the FDA does not necessarily pursue enforcement measures regarding all objectionable labels, preclusion of Lanham Act claims could leave commercial interests—and indirectly the public at large—with less effective protection in the food and beverage labeling realm than in other less regulated industries. . (c) Coca-Cola’s arguments do not support its claim that preclusion is proper because Congress intended national uniformity in food and beverage labeling. First, the FDCA’s delegation of enforcement authority to the Federal Government does not indicate that Congress intended to foreclose private enforcement of other federal statutes. Second, the FDCA’s express pre-emption provision applies by its terms to state, not federal, law. Even if it were proper to stray from that text, it not clear that Coca-Cola’s national uniformity assertions reflect the congressional design. Finally, the FDCA and its implementing regulations may address food and beverage labeling with more specificity than the Lanham Act, but this specificity would matter only if the two Acts cannot be implemented in full at the same time. Here, neither the statutory structure nor the empirical evidence of which the Court is aware indicates there will be any difficulty in fully enforcing each statute according to its terms. . (d) The Government’s intermediate position—that a Lanham Act claim is precluded “to the extent the FDCA or FDA regulations specifically require or authorize the challenged aspects of [the] label,” and that this rule precludes POM’s challenge to the name of Coca-Cola’s product—is flawed, for the Government assumes that the FDCA and its regulations are a ceiling on the regulation of food and beverage labeling when Congress intended the Lanham Act and the FDCA to complement each other with respect to labeling. Though the FDA’s rulemaking alludes at one point to a balance of interests, it neither discusses nor cites the Lanham Act; and the Government points to no other statement suggesting that the FDA considered the full scope of interests protected by the Lanham Act. Even if agency regulations with the force of law that purport to bar other legal remedies may do so, it is a bridge too far to accept an agency’s after-the-fact statement to justify that result here. An agency may not reorder federal statutory rights without congressional authorization. . 679 F.3d 1170, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which all other Members joined, except Breyer, J., who took no part in the consideration or decision of the case.

Section 45 of the Lanham Act creates a cause of action for unfair competition through misleading advertising or labeling, and §43 allows one competitor to sue another if it alleges unfair competition arising from false or misleading product descriptions. To implement these provisions, the Food and Drug Administration (FDA) promulgated regulations regarding food and beverage labeling, including the labeling of mixes of different types of juice into one juice blend. Section 45 also contains a provision pre-empting certain state laws on misbranding, which forecloses a state or political subdivision of a State from establishing requirements that are of the type, but not identical to, the requirements in some of the Misbranding provisions of the Act. Petitioner, a manufacturer of pomegranate juice products, filed suit in Federal District Court under §43, alleging that the use of the label deceptive and misleading, and seeking damages and injunctive relief. The court granted partial summary judgment to the FDCA on POM, claiming that, under FDCA and regulations, challenges to the name and label of its juice blend were barred by the Federal Food, Drug, and Cosmetic Act (FDCA). The Court of Appeals affirmed in relevant part. Held: 1. This is not a pre-emption case. Pp. 441 U.S. ___. ;. 2. The FDCA is the second statute to be discussed, and nothing in the text, history, or structure of either statute shows the congressional purpose or design to forbid suits like POM. P.. 3. POM is not precluded from bringing a Lanham-Act claim challenging a food label that is regulated by FDCA. . (a) The Lanham statute and its regulations provide the United States with nearly exclusive enforcement author-ity, including authority to seek criminal sanctions in some circumstances. Cf. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U. S. 23, 29 (2003). P., n. 6. (b) Neither the Act of Lanham, which is the primary means of achieving the ends of protecting commercial interests against unfair competition, nor the Act, by its terms, subjects to suit any person who misrepresents the nature, characteristics, qualities, or geographic origin of goods or services. No other provision in the Act limits that understanding or purports to govern the relevant interaction between the Act and the FDA. And the Act does not preclude POM from making a policy judgment that is inconsistent with POM-ca challenge of the name of her product, but only with the other aspects of her label that are at issue. In fact, POM has made no policy judgment inconsistent with her Lanham Act suit, and therefore the FDA does not have authority to enforce that claim. See id., at 1166. 762 F. 3d 1170, reversed and remanded. POWELL, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p..

2013_12-9490

https://www.oyez.org/cases/2013/12-9490

. After a 911 caller reported that a vehicle had run her off the road, a police officer located the vehicle she identified during the call and executed a traffic stop. We hold that the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated. I On August 23, 2008, a Mendocino County 911 dispatch team for the California Highway Patrol (CHP) received a call from another CHP dispatcher in neighboring Humboldt County. The Humboldt County dispatcher relayed a tip from a 911 caller, which the Mendocino County team recorded as follows: “ ‘Showing southbound Highway 1 at mile marker 88, Silver Ford 150 pickup. Plate of 8-David-94925. Ran the reporting party off the roadway and was last seen approximately five [minutes] ago.’ ” App. 36a. The Mendocino County team then broadcast that information to CHP officers at 3:47 p.m. A CHP officer heading northbound toward the reported vehicle responded to the broadcast. At 4:00 p.m., the officer passed the truck near mile marker 69. At about 4:05 p.m., after making a U-turn, he pulled the truck over. A second officer, who had separately responded to the broadcast, also arrived on the scene. As the two officers approached the truck, they smelled marijuana. A search of the truck bed revealed 30 pounds of marijuana. The officers arrested the driver, petitioner Lorenzo Prado Navarette, and the passenger, petitioner José Prado Navarette. Petitioners moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment because the officer lacked reasonable suspicion of criminal activity. Both the magistrate who presided over the suppression hearing and the Superior Court disagreed.[1] Petitioners pleaded guilty to transporting marijuana and were sentenced to 90 days in jail plus three years ofprobation. The California Court of Appeal affirmed, concluding that the officer had reasonable suspicion to conduct an investigative stop. 2012 WL 4842651 (Oct. 12, 2012). The court reasoned that the content of the tip indicated that it came from an eyewitness victim of reckless driving, and that the officer’s corroboration of the truck’s description, location, and direction established that the tip was reliable enough to justify a traffic stop. Id., at *7. Finally, the court concluded that the caller reported driving that was sufficiently dangerous to merit an investigative stop without waiting for the officer to observe additional reckless driving himself. Id., at *9. The California Supreme Court denied review. We granted certiorari, 570 U. S. ___ (2013), and now affirm. II The Fourth Amendment permits brief investigative stops—such as the traffic stop in this case—when a law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U. S. 411 –418 (1981); see also Terry v. Ohio, 392 U. S. 1 –22 (1968). The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability.” Alabama v. White, 496 U. S. 325, 330 (1990) . The standard takes into account “the totality of the circumstances—the whole picture.” Cortez, supra, at 417. Although a mere “ ‘hunch’ ” does not create reasonable suspicion, Terry, supra, at 27, the level of suspicion the standard requires is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less” than is necessary for probable cause, United States v. Sokolow, 490 U. S. 1, 7 (1989) . A These principles apply with full force to investigative stops based on information from anonymous tips. We have firmly rejected the argument “that reasonable cause for a[n investigative stop] can only be based on the officer’s personal observation, rather than on information supplied by another person.” Adams v. Williams, 407 U. S. 143, 147 (1972) . Of course, “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” White, 496 U. S., at 329 (emphasis added). That is because “ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations,” and an anonymous tipster’s veracity is “ ‘by hypoth-esis largely unknown, and unknowable.’ ” Ibid. But under appropriate circumstances, an anonymous tip can demonstrate “sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.” Id., at 327. Our decisions in Alabama v. White, 496 U. S. 325 (1990) , and Florida v. J. L., 529 U. S. 266 (2000) , are useful guides. In White, an anonymous tipster told the police that a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken right tail light. The tipster further asserted that the woman would be transporting cocaine. 496 U. S., at 327. After confirming the innocent details, officers stopped the station wagon as it neared the motel and found cocaine in the vehicle. Id., at 331. We held that the officers’ corroboration of certain details made the anonymous tip sufficiently reliable to create reasonable suspicion of criminal activity. By accurately predicting future behavior, the tipster demonstrated “a special familiarity with respondent’s affairs,” which in turn implied that the tipster had “access to reliable information about that individual’s illegal activities.” Id., at 332. We also recognized that an informant who is proved to tell the truth about some things is more likely to tell the truth about other things, “including the claim that the object of the tip is engaged in criminal activity.” Id., at 331 (citing Illinois v. Gates, 462 U. S. 213, 244 (1983) ). In J. L., by contrast, we determined that no reasonable suspicion arose from a bare-bones tip that a young black male in a plaid shirt standing at a bus stop was carrying a gun. 529 U. S., at 268. The tipster did not explain how he knew about the gun, nor did he suggest that he had any special familiarity with the young man’s affairs. Id., at 271. As a result, police had no basis for believing “that the tipster ha[d] knowledge of concealed criminal activity.” Id., at 272. Furthermore, the tip included no predictions of future behavior that could be corroborated to assess the tipster’s credibility. Id., at 271. We accordingly concluded that the tip was insufficiently reliable to justify a stop and frisk. B The initial question in this case is whether the 911 call was sufficiently reliable to credit the allegation that petitioners’ truck “ran the [caller] off the roadway.” Even assuming for present purposes that the 911 call was anonymous, see n. 1, supra, we conclude that the call bore adequate indicia of reliability for the officer to credit the caller’s account. The officer was therefore justified in proceeding from the premise that the truck had, in fact, caused the caller’s car to be dangerously diverted from the highway. By reporting that she had been run off the road by a specific vehicle—a silver Ford F-150 pickup, license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip’s reliability. See Gates, supra, at 234 (“[An informant’s] explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case”); Spinelli v. United States, 393 U. S. 410, 416 (1969) (a tip of illegal gambling is less reliable when “it is not alleged that the informant personally observed [the defendant] at work or that he had ever placed a bet with him”). This is in contrast to J. L., where the tip provided no basis for concluding that the tipster had actually seen the gun. 529 U. S., at 271. Even in White, where we upheld the stop, there was scant evidence that the tipster had actually observed cocaine in the station wagon. We called White a “ ‘close case’ ” because “[k]nowledge about a person’s future movements indicates some familiarity with that person’s affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband.” 529 U. S., at 271. A driver’s claim that another vehicle ran her off the road, however, necessarily implies that the informant knows the other car was driven dangerously. There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed the truck’s location near mile marker 69 (roughly 19 highway miles south of the location reported in the 911 call) at 4:00 p.m. (roughly 18 minutes after the 911 call). That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable. In evidence law, we generally credit the proposition that statements about an event and made soon after perceiving that event are especially trustworthy because “substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.” Advisory Committee’s Notes on Fed. Rule Evid. 803(1), 28 U. S. C. App., p. 371 (describing the rationale for the hearsay exception for “present sense impression[s]”). A similar rationale applies to a “statement relating to a startling event”—such as getting run off the road—“made while the declarant was under the stress of excitement that it caused.” Fed. Rule Evid. 803(2) (hearsay exception for “excited utterances”). Unsurprisingly, 911 calls that would otherwise be inadmissible hearsay have often been admitted on those grounds. See D. Binder, Hearsay Handbook §8.1, pp. 257–259 (4th ed. 2013–2014) (citing cases admitting 911 calls as present sense impressions); id., §9.1, at 274–275 (911 calls admitted as excited utterances). There was no indication that the tip in J. L. (or even in White) was contemporaneous with the observation of criminal activity or made under the stress of excitement caused by a startling event, but those considerations weigh in favor of the caller’s veracity here. Another indicator of veracity is the caller’s use of the 911 emergency system. See Brief for Respondent 40–41, 44; Brief for United States as Amicus Curiae 16–18. A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity. See J. L., supra, at 276 (Kennedy, J., concurring). As this case illustrates, see n. 1, supra, 911 calls can be recorded, which provides victims with an opportunity to identify the false tipster’s voice and subject him to prosecution, see, e.g., Cal. Penal Code Ann. §653x (West 2010) (makes “telephon[ing] the 911 emergency line with the intent to annoy or harass” punishable by imprisonment and fine); see also §148.3 (2014 West Cum. Supp.) (prohibits falsely reporting “that an ‘emergency’ exists”); §148.5 (prohibits falsely reporting “that a felony or misdemeanor has been committed”). The 911 system also permits law enforcement to verify important information about the caller. In 1998, the Federal Communications Commission (FCC) began to require cellular carriers to relay the caller’s phone number to 911 dispatchers. 47 CFR §20.18(d)(1) (2013) (FCC’s “Phase I enhanced 911 services” requirements). Beginning in 2001, carriers have been required to identify the caller’s geographic location with increasing specificity. §§20.18(e)–(h) (“Phase II enhanced 911 service” requirements). And although callers may ordinarily block call recipients from obtaining their identifying information, FCC regulations exempt 911 calls from that privilege. §§64.1601(b), (d)(4)(ii) (“911 emergency services” exemption from rule that, when a caller so requests, “a carrier may not reveal that caller’s number or name”). None of this is to suggest that tips in 911 calls are per se reliable. Given the foregoing technological and regulatory developments, however, a reasonable officer could conclude that a false tipster would think twice before using such a system. The caller’s use of the 911 system is therefore one of the relevant circum-stances that, taken together, justified the officer’s reliance on the information reported in the 911 call. C Even a reliable tip will justify an investigative stop only if it creates reasonable suspicion that “criminal activity may be afoot.” Terry, 392 U. S., at 30. We must therefore determine whether the 911 caller’s report of being run off the roadway created reasonable suspicion of an ongoing crime such as drunk driving as opposed to an isolated episode of past recklessness. See Cortez, 449 U. S., at 417 (“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity”). We conclude that the behavior alleged by the 911 caller, “viewed from the standpoint of an objectively reasonable police officer, amount[s] to reasonable suspicion” of drunk driving. Ornelas v. United States, 517 U. S. 690, 696 (1996) . The stop was therefore proper.[2] Reasonable suspicion depends on “ ‘ “the factual and practical considerations of everyday life on which reason-able and prudent men, not legal technicians, act.” ’ ” Id., at 695. Under that commonsense approach, we can appropriately recognize certain driving behaviors as sound indicia of drunk driving. See, e.g., People v. Wells, 38 Cal. 4th 1078, 1081, 136 P. 3d 810, 811 (2006) (“ ‘weaving all over the roadway’ ”); State v. Prendergast, 103 Haw. 451, 452–453, 83 P. 3d 714, 715–716 (2004) (“cross[ing] over the center line” on a highway and “almost caus[ing] several head-on collisions”); State v. Golotta, 178 N. J. 205, 209, 837 A. 2d 359, 361 (2003) (driving “ ‘all overthe road’ ” and “ ‘weaving back and forth’ ”); State v. Walshire, 634 N. W. 2d 625, 626 (Iowa 2001) (“driving in the median”). Indeed, the accumulated experience of thousands of officers suggests that these sorts of erratic behaviors are strongly correlated with drunk driving. See Nat. Highway Traffic Safety Admin., The Visual Detection of DWI Motorists 4–5 (Mar. 2010), online at http://nhtsa.gov/staticfiles/nti/pdf/808677.pdf (as visited Apr. 18, 2014, and available in Clerk of Court’s case file). Of course, not all traffic infractions imply intoxication. Unconfirmed reports of driving without a seatbelt or slightly over the speed limit, for example, are so tenuously connected to drunk driving that a stop on those grounds alone would be constitutionally suspect. But a reliable tip alleging the dangerous behaviors discussed above gener-ally would justify a traffic stop on suspicion of drunk driving. The 911 caller in this case reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver’s conduct: running another car off the highway. That conduct bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness. Running another vehicle off the road suggests lane-positioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues. See Visual Detection of DWI Motorists 4–5. And the experience of many officers suggests that a driver who almost strikes a vehicle or another object—the exact scenario that ordinarily causes “running [another vehicle] off the roadway”—is likely intoxicated. See id., at 5, 8.As a result, we cannot say that the officer acted unreasonably under these circumstances in stopping a driverwhose alleged conduct was a significant indicator of drunk driving. Petitioners’ attempts to second-guess the officer’s rea-sonable suspicion of drunk driving are unavailing. It is true that the reported behavior might also be explained by, for example, a driver responding to “an unruly child or other distraction.” Brief for Petitioners 21. But we have consistently recognized that reasonable suspicion “need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U. S. 266, 277 (2002) . Nor did the absence of additional suspicious conduct, after the vehicle was first spotted by an officer, dispel the reasonable suspicion of drunk driving. Brief for Petitioners 23–24. It is hardly surprising that the appearance of a marked police car would inspire more careful driving for a time. Cf. Arvizu, supra, at 275 (“ ‘[s]lowing down after spotting a law enforcement vehicle’ ” does not dispel reasonable suspicion of criminal activity). Extended observation of an allegedly drunk driver might eventually dispel a reasonable suspicion of intoxication, but the 5-minute period in this case hardly sufficed in that regard. Of course, an officer who already has such a reasonable suspicion need not surveil a vehicle at length in order to personally observe suspicious driving. See Adams v. Williams, 407 U. S., at 147 (repudiating the argument that “reasonable cause for a[n investigative stop] can only be based on the officer’s personal observation”). Once reasonable suspicion of drunk driving arises, “[t]he reasonableness of the officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.” Sokolow, 490 U. S., at 11. This would be a particularly inappropriate context to depart from that settled rule, because allowing a drunk driver a second chance for dangerous conduct could have disastrousconsequences. III Like White, this is a “close case.” 496 U. S., at 332. As in that case, the indicia of the 911 caller’s reliability here are stronger than those in J. L., where we held that a bare-bones tip was unreliable. 529 U. S., at 271. Although the indicia present here are different from those we found sufficient in White, there is more than one way to demonstrate “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U. S., at 417–418. Under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road. That made it reasonable under the circumstances for the officer to execute a traffic stop. We accordingly affirm. It is so ordered.Notes 1 At the suppression hearing, counsel for petitioners did not dispute that the reporting party identified herself by name in the 911 call recording. Because neither the caller nor the Humboldt County dispatcher who received the call was present at the hearing, however, the prosecution did not introduce the recording into evidence. The prosecution proceeded to treat the tip as anonymous, and the lower courts followed suit. See 2012 WL 4842651, *6 (Cal. Ct. App., Oct. 12, 2012). 2 Because we conclude that the 911 call created reasonable suspicion of an ongoing crime, we need not address under what circumstances a stop is justified by the need to investigate completed criminal activity. Cf. v. , .

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus PRADO NAVARETTE et al. v. CALIFORNIA certiorari to the court of appeal of california, first appellate district No. 12–9490. Argued January 21, 2014—Decided April 22, 2014 A California Highway Patrol officer stopped the pickup truck occupied by petitioners because it matched the description of a vehicle that a 911 caller had recently reported as having run her off the road. As he and a second officer approached the truck, they smelled marijuana. They searched the truck’s bed, found 30 pounds of marijuana, and arrested petitioners. Petitioners moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment. Their motion was denied, and they pleaded guilty to transporting marijuana. The California Court of Appeal affirmed, concluding that the officer had reasonable suspicion to conduct an investigative stop. Held: The traffic stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the truck’s driver was intoxicated. . (a) The Fourth Amendment permits brief investigative stops when an officer has “a particularized and objective basis for suspecting the particular person stopped of . . . criminal activity.” United States v. Cortez, 449 U.S. 411, 417–418. Reasonable suspicion takes into account “the totality of the circumstances,” id., at 417, and depends “upon both the content of information possessed by police and its degree of reliability,” Alabama v. White, 496 U.S. 325, 330. An anonymous tip alone seldom demonstrates sufficient reliability, White, 496 U. S., at 329, but may do so under appropriate circumstances, id., at 327. . (b) The 911 call in this case bore adequate indicia of reliability for the officer to credit the caller’s account. By reporting that she had been run off the road by a specific vehicle, the caller necessarily claimed an eyewitness basis of knowledge. The apparently short time between the reported incident and the 911 call suggests that the caller had little time to fabricate the report. And a reasonable officer could conclude that a false tipster would think twice before using the 911 system, which has several technological and regulatory features that safeguard against making false reports with immunity. . (c) Not only was the tip here reliable, but it also created reasonable suspicion of drunk driving. Running another car off the road suggests the sort of impairment that characterizes drunk driving. While that conduct might be explained by another cause such as driver distraction, reasonable suspicion “need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277. Finally, the officer’s failure to observe additional suspicious conduct during the short period that he followed the truck did not dispel the reasonable suspicion of drunk driving, and the officer was not required to surveil the truck for a longer period. . Affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

After a 911 caller reported that a vehicle had run her off the road, a Mendocino County, California, police officer located the vehicle she identified during the call and executed a traffic stop. The call contained a tip that the caller had been run off the roadway by a specific vehicle, and that the officer had reasonable suspicion that the driver was intoxicated. At the suppression hearing, petitioners pleaded guilty to transporting marijuana, and the California Court of Appeal affirmed. The court reasoned that the content of the tip indicated that it came from an eyewitness victim of reckless driving, that the police officer's corroboration of the truck's description, location, and direction established that the tip was reliable enough to justify a stop. Held: The traffic stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer lacked reasonable suspicion of criminal activity. . (a) The call bore adequate indicia of reliability for the officer to credit the caller's account. Even assuming for present purposes that the 911 call was anonymous, this is in contrast to J. L. v. White, 496 U. S. 325, 330, where a mere "hunch” does not create reasonable suspicion, Terry v. Ohio,, and the level of suspicion the standard requires is "considerably less than proof of wrongdoing by a preponderance of the evidence," and "obviously less" than is necessary for probable cause. P.. (b) A reasonable officer could conclude that a false tipster would think twice before using a system that provided no basis for concluding that he had actually seen the gun. Here, the caller clearly claimed eyewitness knowledge of the alleged dangerous driving, which was significant support to the tip. Moreover, the fact that the call included no predictions of future behavior that could be corroborated to assess the tipster's credibility was sufficient to justify the stop, since the caller, as a matter of fact, was fairly certain that the truck had, in fact, caused the caller and her car to be dangerously diverted from the highway. And even a reliable tip will justify an investigative stop only if it creates reasonable suspicion that "criminal activity may be afoot.” Terry, supra, at 30. From an objective standpoint, an alleged drunk driver must be stopped by an objectively reasonable police officer. Reasonable suspicion depends on the factual reasonableness of the reason[s] for stopping the person stopped, and therefore on the practical considerations of practical life and legal considerations, which are not determinable from a practical standpoint. See, e.g., Avery v. United States,,. In this case, the indicia of reliability in this case were sufficient to provide the officer with reasonable suspicion. That made it reasonable under the circumstances for the officer to execute a traffic stop.. 570 U.S. ___ (2013), and now affirm. DOUGLAS, BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., affirmed.

2013_13-132

https://www.oyez.org/cases/2013/13-132

. These two cases raise a common question: whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. I A In the first case, petitioner David Riley was stopped by a police officer for driving with expired registration tags. In the course of the stop, the officer also learned that Riley’s license had been suspended. The officer impounded Riley’s car, pursuant to department policy, and another officer conducted an inventory search of the car. Riley was arrested for possession of concealed and loaded firearms when that search turned up two handguns under the car’s hood. See Cal. Penal Code Ann. §§12025(a)(1), 12031(a)(1) (West 2009). An officer searched Riley incident to the arrest and found items associated with the “Bloods” street gang. He also seized a cell phone from Riley’s pants pocket. According to Riley’s uncontradicted assertion, the phone was a “smart phone,” a cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity. The officer accessed information on the phone and noticed that some words (presumably in text messages or a contacts list) were preceded by the letters “CK”—a label that, he believed, stood for “Crip Killers,” a slang term for members of the Bloods gang. At the police station about two hours after the arrest, a detective specializing in gangs further examined the contents of the phone. The detective testified that he “went through” Riley’s phone “looking for evidence, because . . . gang members will often video themselves with guns or take pictures of themselves with the guns.” App. in No. 13–132, p. 20. Although there was “a lot of stuff” on the phone, particular files that “caught [the detective’s] eye” included videos of young men sparring while someone yelled encouragement using the moniker “Blood.” Id., at 11–13. The police also found photographs of Riley standing in front of a car they suspected had been involved in a shooting a few weeks earlier. Riley was ultimately charged, in connection with that earlier shooting, with firing at an occupied vehicle, assault with a semiautomatic firearm, and attempted murder. The State alleged that Riley had committed those crimes for the benefit of a criminal street gang, an aggravating factor that carries an enhanced sentence. Compare Cal. Penal Code Ann. §246 (2008) with §186.22(b)(4)(B) (2014). Prior to trial, Riley moved to suppress all evidence that the police had obtained from his cell phone. He contended that the searches of his phone violated the Fourth Amendment, because they had been performed without a warrant and were not otherwise justified by exigent circumstances. The trial court rejected that argument. App. in No. 13–132, at 24, 26. At Riley’s trial, police officers testified about the photographs and videos found on the phone, and some of the photographs were admitted into evidence. Riley was convicted on all three counts and received an enhanced sentence of 15 years to life in prison. The California Court of Appeal affirmed. No. D059840 (Cal. App., Feb. 8, 2013), App. to Pet. for Cert. in No. 13–132, pp. 1a–23a. The court relied on the California Supreme Court’s decision in People v. Diaz, 51 Cal. 4th 84, 244 P. 3d 501 (2011), which held that the Fourth Amendment permits a warrantless search of cell phone data incident to an arrest, so long as the cell phone was immediately associated with the arrestee’s person. See id., at 93, 244 P. 3d, at 505–506. The California Supreme Court denied Riley’s petition for review, App. to Pet. for Cert. in No. 13–132, at 24a, and we granted certiorari, 571 U. S. ___ (2014). B In the second case, a police officer performing routine surveillance observed respondent Brima Wurie make an apparent drug sale from a car. Officers subsequently arrested Wurie and took him to the police station. At the station, the officers seized two cell phones from Wurie’s person. The one at issue here was a “flip phone,” a kind of phone that is flipped open for use and that generally has a smaller range of features than a smart phone. Five to ten minutes after arriving at the station, the officers noticed that the phone was repeatedly receiving calls from a source identified as “my house” on the phone’s external screen. A few minutes later, they opened the phone and saw a photograph of a woman and a baby set as the phone’s wallpaper. They pressed one button on the phone to access its call log, then another button to determine the phone number associated with the “my house” label. They next used an online phone directory to trace that phone number to an apartment building. When the officers went to the building, they saw Wurie’s name on a mailbox and observed through a window a woman who resembled the woman in the photograph on Wurie’s phone. They secured the apartment while obtaining a search warrant and, upon later executing the warrant, found and seized 215 grams of crack cocaine, mari-juana, drug paraphernalia, a firearm and ammunition, and cash. Wurie was charged with distributing crack cocaine, possessing crack cocaine with intent to distribute, and being a felon in possession of a firearm and ammunition. See 18 U. S. C. §922(g); 21 U. S. C. §841(a). He moved to suppress the evidence obtained from the search of the apartment, arguing that it was the fruit of an unconstitutional search of his cell phone. The District Court denied the motion. 612 F. Supp. 2d 104 (Mass. 2009). Wurie was convicted on all three counts and sentenced to 262 months in prison. A divided panel of the First Circuit reversed the denial of Wurie’s motion to suppress and vacated Wurie’s convictions for possession with intent to distribute and possession of a firearm as a felon. 728 F. 3d 1 (2013). The court held that cell phones are distinct from other physical possessions that may be searched incident to arrest without a warrant, because of the amount of personal data cell phones contain and the negligible threat they pose to law enforcement interests. See id., at 8–11. We granted certiorari. 571 U. S. ___ (2014). II The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” As the text makes clear, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Brigham City v. Stuart, 547 U. S. 398, 403 (2006) . Our cases have determined that “[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant.” Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653 (1995) . Such a warrant ensures that the inferences to support a search are “drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U. S. 10, 14 (1948) . In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. See Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 5–6). The two cases before us concern the reasonableness of a warrantless search incident to a lawful arrest. In 1914, this Court first acknowledged in dictum “the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.” Weeks v. United States, 232 U. S. 383 . Since that time, it has been well accepted that such a search constitutes an exception to the warrant requirement. Indeed, the label “exception” is something of a misnomer in this context, as warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant. See 3 W. LaFave, Search and Seizure §5.2(b), p. 132, and n. 15 (5th ed. 2012). Although the existence of the exception for such searches has been recognized for a century, its scope has been de-bated for nearly as long. See Arizona v. Gant, 556 U. S. 332, 350 (2009) (noting the exception’s “checkered his-tory”). That debate has focused on the extent to which officers may search property found on or near the arrestee. Three related precedents set forth the rules governing such searches: The first, Chimel v. California, 395 U. S. 752 (1969) , laid the groundwork for most of the existing search incident to arrest doctrine. Police officers in that case arrested Chimel inside his home and proceeded to search his entire three-bedroom house, including the attic and garage. In particular rooms, they also looked through the contents of drawers. Id., at 753–754. The Court crafted the following rule for assessing the reasonableness of a search incident to arrest: “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Id., at 762–763. The extensive warrantless search of Chimel’s home did not fit within this exception, because it was not needed to protect officer safety or to preserve evidence. Id., at 763, 768. Four years later, in United States v. Robinson, 414 U. S. 218 (1973) , the Court applied the Chimel analysis in the context of a search of the arrestee’s person. A police officer had arrested Robinson for driving with a revoked license. The officer conducted a patdown search and felt an object that he could not identify in Robinson’s coat pocket. He removed the object, which turned out to be a crumpled cigarette package, and opened it. Inside were 14 capsules of heroin. Id., at 220, 223. The Court of Appeals concluded that the search was unreasonable because Robinson was unlikely to have evidence of the crime of arrest on his person, and because it believed that extracting the cigarette package and opening it could not be justified as part of a protective search for weapons. This Court reversed, rejecting the notion that “case-by-case adjudication” was required to determine “whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.” Id., at 235. As the Court explained, “[t]he authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Ibid. Instead, a “custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Ibid. The Court thus concluded that the search of Robinson was reasonable even though there was no concern about the loss of evidence, and the arresting officer had no specific concern that Robinson might be armed. Id., at 236. In doing so, the Court did not draw a line between a search of Robinson’s person and a further examination of the cigarette pack found during that search. It merely noted that, “[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it.” Ibid. A few years later, the Court clarified that this exception was limited to “personal property . . . immediately associated with the person of the arrestee.” United States v. Chadwick, 433 U. S. 1, 15 (1977) (200-pound, locked footlocker could not be searched incident to arrest), abrogated on other grounds by California v. Acevedo, 500 U. S. 565 (1991) . The search incident to arrest trilogy concludes with Gant, which analyzed searches of an arrestee’s vehicle. Gant, like Robinson, recognized that the Chimel concerns for officer safety and evidence preservation underlie the search incident to arrest exception. See 556 U. S., at 338. As a result, the Court concluded that Chimel could authorize police to search a vehicle “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 556 U. S., at 343. Gant added, however, an independent exception for a warrantless search of a vehicle’s passenger compartment “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” Ibid. (quoting Thornton v. United States, 541 U. S. 615, 632 (2004) (Scalia, J., concurring in judgment)). That exception stems not from Chimel, the Court explained, but from “circumstances unique to the vehicle context.” 556 U. S., at 343. III These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones. See A. Smith, Pew Research Center, Smartphone Ownership—2013 Update (June 5, 2013). Even less sophisticated phones like Wurie’s, which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided. Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U. S. 295, 300 (1999) . Such a balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might well support the warrantless searches at issue here. But while Robinson’s categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones. On the government interest side, Robinson concluded that the two risks identified in Chimel—harm to officers and destruction of evidence—are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson. We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search. A We first consider each Chimel concern in turn. In doing so, we do not overlook Robinson’s admonition that searches of a person incident to arrest, “while based upon theneed to disarm and to discover evidence,” are reasonable regardless of “the probability in a particular arrest situation that weapons or evidence would in fact be found.” 414 U. S., at 235. Rather than requiring the “case-by-case adjudication” that Robinson rejected, ibid., we ask instead whether application of the search incident to arrest doctrine to this particular category of effects would “untether the rule from the justifications underlying the Chimel exception,” Gant, supra, at 343. See also Knowles v. Iowa, 525 U. S. 113, 119 (1998) (declining to extend Robinson to the issuance of citations, “a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all”). 1 Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one. Perhaps the same might have been said of the cigarette pack seized from Robinson’s pocket. Once an officer gained control of the pack, it was unlikely that Robinson could have accessed the pack’s contents. But unknown physical objects may always pose risks, no matter how slight, during the tense atmosphere of a custodial arrest. The officer in Robinson testified that he could not identify the objects in the cigarette pack but knew they were not cigarettes. See 414 U. S., at 223, 236, n. 7. Given that, a further search was a reasonable protective measure. No such unknowns exist with respect to digital data. As the First Circuit explained, the officers who searched Wurie’s cell phone “knew exactly what they would find therein: data. They also knew that the data could not harm them.” 728 F. 3d, at 10. The United States and California both suggest that a search of cell phone data might help ensure officer safety in more indirect ways, for example by alerting officers that confederates of the arrestee are headed to the scene. There is undoubtedly a strong government interest in warning officers about such possibilities, but neither the United States nor California offers evidence to suggest that their concerns are based on actual experience. The proposed consideration would also represent a broadening of Chimel’s concern that an arrestee himself might grab a weapon and use it against an officer “to resist arrest or effect his escape.” 395 U. S., at 763. And any such threats from outside the arrest scene do not “lurk[ ] in all custodial arrests.” Chadwick, 433 U. S., at 14–15. Accordingly, the interest in protecting officer safety does not justify dispensing with the warrant requirement across the board. To the extent dangers to arresting officers may be implicated in a particular way in a particular case, they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances. See, e.g., Warden, Md. Penitentiary v. Hayden, 387 U. S. 294 –299 (1967) (“The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.”). 2 The United States and California focus primarily on the second Chimel rationale: preventing the destruction of evidence. Both Riley and Wurie concede that officers could have seized and secured their cell phones to prevent destruction of evidence while seeking a warrant. See Brief for Petitioner in No. 13–132, p. 20; Brief for Respondent in No. 13–212, p. 41. That is a sensible concession. See Illinois v. McArthur, 531 U. S. 326 –333 (2001); Chadwick, supra, at 13, and n. 8. And once law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone. The United States and California argue that information on a cell phone may nevertheless be vulnerable to two types of evidence destruction unique to digital data—remote wiping and data encryption. Remote wiping occurs when a phone, connected to a wireless network, receives a signal that erases stored data. This can happen when a third party sends a remote signal or when a phone is preprogrammed to delete data upon entering or leaving certain geographic areas (so-called “geofencing”). See Dept. of Commerce, National Institute of Standards and Technology, R. Ayers, S. Brothers, & W. Jansen, Guidelines on Mobile Device Forensics (Draft) 29, 31 (SP 800–101 Rev. 1, Sept. 2013) (hereinafter Ayers). Encryption is a security feature that some modern cell phones use in addition to password protection. When such phones lock, data becomes protected by sophisticated encryption that renders a phone all but “unbreakable” unless police know the password. Brief for United States as Amicus Curiae in No. 13–132, p. 11. As an initial matter, these broader concerns about the loss of evidence are distinct from Chimel’s focus on a defendant who responds to arrest by trying to conceal or destroy evidence within his reach. See 395 U. S., at 763–764. With respect to remote wiping, the Government’s primary concern turns on the actions of third parties who are not present at the scene of arrest. And data encryption is even further afield. There, the Government focuses on the ordinary operation of a phone’s security features, apart from any active attempt by a defendant or his associates to conceal or destroy evidence upon arrest. We have also been given little reason to believe that either problem is prevalent. The briefing reveals only a couple of anecdotal examples of remote wiping triggered by an arrest. See Brief for Association of State Criminal Investigative Agencies et al. as Amici Curiae in No. 13–132, pp. 9–10; see also Tr. of Oral Arg. in No. 13–132,p. 48. Similarly, the opportunities for officers to search a password-protected phone before data becomes encrypted are quite limited. Law enforcement officers are very unlikely to come upon such a phone in an unlocked state because most phones lock at the touch of a button or, as a default, after some very short period of inactivity. See, e.g., iPhone User Guide for iOS 7.1 Software 10 (2014) (default lock after about one minute). This may explain why the encryption argument was not made until the merits stage in this Court, and has never been considered by the Courts of Appeals. Moreover, in situations in which an arrest might trigger a remote-wipe attempt or an officer discovers an unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a difference. The need to effect the arrest, secure the scene, and tend to other press-ing matters means that law enforcement officers may well not be able to turn their attention to a cell phone right away. See Tr. of Oral Arg. in No. 13–132, at 50; see also Brief for United States as Amicus Curiae in No. 13–132, at 19. Cell phone data would be vulnerable to remote wiping from the time an individual anticipates arrest to the time any eventual search of the phone is completed, which might be at the station house hours later. Likewise, an officer who seizes a phone in an unlocked state might not be able to begin his search in the short time remaining before the phone locks and data becomes encrypted. In any event, as to remote wiping, law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an enclosure that isolates the phone from radio waves. See Ayers 30–31. Such devices are commonly called “Faraday bags,” after the English scientist Michael Faraday. They are essentially sandwich bags made of aluminum foil: cheap, lightweight, and easy to use. See Brief for Criminal Law Professors as Amici Curiae 9. They may not be a complete answer to the problem, see Ayers 32, but at least for now they provide a reasonable response. In fact, a number of law enforcement agencies around the country already encourage the use of Faraday bags. See, e.g., Dept. of Justice, National Institute of Justice, Electronic Crime Scene Investigation: A Guide for First Responders 14, 32 (2d ed. Apr. 2008); Brief for Criminal Law Professors as Amici Curiae 4–6. To the extent that law enforcement still has specific concerns about the potential loss of evidence in a particular case, there remain more targeted ways to address those concerns. If “the police are truly confronted with a ‘now or never’ situation,”—for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt—they may be able to rely on exigent circumstances to search the phone immediately. Missouri v. McNeely, 569 U. S. ___, ___ (2013) (slip op., at 10) (quoting Roaden v. Kentucky, 413 U. S. 496, 505 (1973) ; some internal quotation marks omitted). Or, if officers happen to seize a phone in an unlocked state, they may be able to disable a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data. See App. to Reply Brief in No. 13–132, p. 3a (diagramming the few necessary steps). Such a preventive measure could be analyzed under the principles set forth in our decision in McArthur, 531 U. S. 326 , which approved officers’ reasonable steps to secure a scene to preserve evidence while they awaited a warrant. See id., at 331–333. B The search incident to arrest exception rests not only on the heightened government interests at stake in a volatile arrest situation, but also on an arrestee’s reduced privacy interests upon being taken into police custody. Robinson focused primarily on the first of those rationales. But it also quoted with approval then-Judge Cardozo’s account of the historical basis for the search incident to arrest exception: “Search of the person becomes lawful when grounds for arrest and accusation have been discovered, and the law is in the act of subjecting the body of the accused to its physical dominion.” 414 U. S., at 232 (quoting People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923)); see also 414 U. S., at 237 (Powell, J., concurring) (“an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person”). Put simply, a patdown of Robinson’s cloth-ing and an inspection of the cigarette pack found in his pocket constituted only minor additional intrusions compared to the substantial government authority exercised in taking Robinson into custody. See Chadwick, 433 U. S., at 16, n. 10 (searches of a person are justified in part by “reduced expectations of privacy caused by the arrest”). The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search “is acceptable solely because a person is in custody.” Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 26). To the contrary, when “privacy-related concerns are weighty enough” a “search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” Ibid. One such example, of course, is Chimel. Chimel refused to “characteriz[e] the invasion of privacy that results from a top-to-bottom search of a man’s house as ‘minor.’ ” 395 U. S., at 766–767, n. 12. Because a search of the arrestee’s entire house was a substantial invasion beyond the arrest itself, the Court concluded that a warrant was required. Robinson is the only decision from this Court applying Chimel to a search of the contents of an item found on an arrestee’s person. In an earlier case, this Court had approved a search of a zipper bag carried by an arrestee, but the Court analyzed only the validity of the arrest itself. See Draper v. United States, 358 U. S. 307 –311 (1959). Lower courts applying Robinson and Chimel, however, have approved searches of a variety of personal items carried by an arrestee. See, e.g., United States v. Carrion, 809 F. 2d 1120, 1123, 1128 (CA5 1987) (billfold and address book); United States v. Watson, 669 F. 2d 1374, 1383–1384 (CA11 1982) (wallet); United States v. Lee, 501 F. 2d 890, 892 (CADC 1974) (purse). The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items. Brief for United States in No. 13–212, p. 26. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom. 1 Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. See Kerr, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403, 404–405 (2013). Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson. But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. See Kerr, supra, at 404; Brief for Center for Democracy & Technol-ogy et al. as Amici Curiae 7–8. Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on. See id., at 30; United States v. Flores-Lopez, 670 F. 3d 803, 806 (CA7 2012). We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future. The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.[1] Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. See Harris Interactive, 2013 Mobile Consumer Habits Study (June 2013). A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary. See, e.g., United States v. Frankenberry, 387 F. 2d 337 (CA2 1967) (per curiam). But those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. See Ontario v. Quon, 560 U. S. 746, 760 (2010) . Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case. Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a stand-ard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. See United States v. Jones, 565 U. S. ___, ___ (2012) (Sotomayor, J., concurring) (slip op., at 3) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”). Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life. See Brief for Electronic Privacy Information Center as Amicus Curiae in No. 13–132, p. 9. In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previ-ously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is. 2 To further complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself. Treating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter. See New York v. Belton, 453 U. S. 454, 460, n. 4 (1981) (describing a “container” as “any object capable of holding another object”). But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen. That is what cell phones, with increasing frequency, are designed to do by taking advantage of “cloud computing.” Cloud computing is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself. Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference. See Brief for Electronic Privacy Information Center in No. 13–132, at 12–14, 20. Moreover, the same type of data may be stored locally on the device for one user and in the cloud for another. The United States concedes that the search incident to arrest exception may not be stretched to cover a search of files accessed remotely—that is, a search of files stored in the cloud. See Brief for United States in No. 13–212, at 43–44. Such a search would be like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house. But officers searching a phone’s data would not typically know whether the information they are viewing was stored locally at the time of the arrest or has been pulled from the cloud. Although the Government recognizes the problem, its proposed solutions are unclear. It suggests that officers could disconnect a phone from the network before searching the device—the very solution whose feasibility it contested with respect to the threat of remote wiping. Compare Tr. of Oral Arg. in No. 13–132, at 50–51, with Tr. of Oral Arg. in No. 13–212, pp. 13–14. Alternatively, the Government proposes that law enforcement agencies “develop protocols to address” concerns raised by cloud computing. Reply Brief in No. 13–212, pp. 14–15. Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols. The possibility that a search might extend well beyond papers and effects in the physical proximity of an arrestee is yet another reason that the privacy interests here dwarf those in Robinson. C Apart from their arguments for a direct extension of Robinson, the United States and California offer various fallback options for permitting warrantless cell phone searches under certain circumstances. Each of the proposals is flawed and contravenes our general preference to provide clear guidance to law enforcement through categorical rules. “[I]f police are to have workable rules, the balancing of the competing interests . . . ‘must in large part be done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police officers.’ ” Michigan v. Summers, 452 U. S. 692, 705, n. 19 (1981) (quoting Dunaway v. New York, 442 U. S. 200 –220 (1979) (White, J., concurring)). The United States first proposes that the Gant standard be imported from the vehicle context, allowing a warrantless search of an arrestee’s cell phone whenever it is reasonable to believe that the phone contains evidence of the crime of arrest. But Gant relied on “circumstances unique to the vehicle context” to endorse a search solely for the purpose of gathering evidence. 556 U. S., at 343. Justice Scalia’s Thornton opinion, on which Gant was based, explained that those unique circumstances are “a reduced expectation of privacy” and “heightened law enforcement needs” when it comes to motor vehicles. 541 U. S., at 631; see also Wyoming v. Houghton, 526 U. S., at 303–304. For reasons that we have explained, cell phone searches bear neither of those characteristics. At any rate, a Gant standard would prove no practical limit at all when it comes to cell phone searches. In the vehicle context, Gant generally protects against searches for evidence of past crimes. See 3 W. LaFave, Search and Seizure §7.1(d), at 709, and n. 191. In the cell phone context, however, it is reasonable to expect that incriminating information will be found on a phone regardless of when the crime occurred. Similarly, in the vehicle context Gant restricts broad searches resulting from minor crimes such as traffic violations. See id., §7.1(d), at 713, and n. 204. That would not necessarily be true for cell phones. It would be a particularly inexperienced or unimaginative law enforcement officer who could not come up with sev-eral reasons to suppose evidence of just about any crime could be found on a cell phone. Even an individual pulled over for something as basic as speeding might well have locational data dispositive of guilt on his phone. An individual pulled over for reckless driving might have evidence on the phone that shows whether he was texting while driving. The sources of potential pertinent information are virtually unlimited, so applying the Gant standard to cell phones would in effect give “police officers unbridled discretion to rummage at will among a person’s private effects.” 556 U. S., at 345. The United States also proposes a rule that would restrict the scope of a cell phone search to those areas of the phone where an officer reasonably believes that infor-mation relevant to the crime, the arrestee’s identity, or officer safety will be discovered. See Brief for United States in No. 13–212, at 51–53. This approach would again impose few meaningful constraints on officers. The proposed categories would sweep in a great deal of information, and officers would not always be able to discern in advance what information would be found where. We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log, as they did in Wurie’s case. The Government relies on Smith v. Maryland, 442 U. S. 735 (1979) , which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. See id., at 745–746. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case. Finally, at oral argument California suggested a different limiting principle, under which officers could search cell phone data if they could have obtained the same information from a pre-digital counterpart. See Tr. of Oral Arg. in No. 13–132, at 38–43; see also Flores-Lopez, 670 F. 3d, at 807 (“If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number.”). But the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years. And to make matters worse, such an analogue test would allow law enforcement to search a range of items contained on a phone, even though people would be unlikely to carry such a variety of information in physical form. In Riley’s case, for example, it is implausible that he would have strolled around with video tapes, photo albums, and an address book all crammed into his pockets. But because each of those items has a pre-digital analogue, police under California’s proposal would be able to search a phone for all of those items—a significant diminution of privacy. In addition, an analogue test would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records. Is an e-mail equivalent to a letter? Is a voicemail equivalent to a phone message slip? It is not clear how officers could make these kinds of decisions before conducting a search, or how courts would apply the proposed rule after the fact. An analogue test would “keep defendants and judges guessing for years to come.” Sykes v. United States, 564 U. S. 1 , ___ (2011) (Scalia, J., dissenting) (slip op., at 7) (discussing the Court’s analogue test under the Armed Career Criminal Act). IV We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost. Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is “an important working part of our machinery of gov-ernment,” not merely “an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.” Coolidge v. New Hampshire, 403 U. S. 443, 481 (1971) . Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. See McNeely, 569 U. S., at ___ (slip op., at 11–12); id., at ___ (Roberts, C. J., concurring in part and dissenting in part) (slip op., at 8) (describing jurisdiction where “police officers can e-mail warrant requests to judges’ iPads [and] judges have signed such warrants and e-mailed them back to officers in less than 15 minutes”). Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone. “One well-recognized exception applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’ ” Kentucky v. King, 563 U. S., at ___ (slip op., at 6) (quoting Mincey v. Arizona, 437 U. S. 385, 394 (1978) ). Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. 563 U. S., at ___. In Chadwick, for example, the Court held that the exception for searches incident to arrest did not justify a search of the trunk at issue, but noted that “if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage.” 433 U. S., at 15, n. 9. In light of the availability of the exigent circumstances exception, there is no reason to believe that law enforcement officers will not be able to address some of the more extreme hypotheticals that have been suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child’s location on his cell phone. The defendants here recognize—indeed, they stress—that such fact-specific threats may justify a warrantless search of cell phone data. See Reply Brief in No. 13–132, at 8–9; Brief for Respondent in No. 13–212, at 30, 41. The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case. See McNeely, supra, at ___ (slip op., at 6).[2] * * * Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886) ). Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant. We reverse the judgment of the California Court of Appeal in No. 13–132 and remand the case for further proceedings not inconsistent with this opinion. We affirm the judgment of the First Circuit in No. 13–212. It is so ordered.Notes 1 Because the United States and California agree that these cases involve incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances. 2 In Wurie’s case, for example, the dissenting First Circuit judge argued that exigent circumstances could have justified a search of Wurie’s phone. See 728 F. 3d 1, 17 (2013) (opinion of Howard, J.) (discussing the repeated unanswered calls from “my house,” the suspected location of a drug stash). But the majority concluded that the Government had not made an exigent circumstances argument. See at 1. The Government acknowledges the same in this Court. See Brief for United States in No. 13–212, p. 28, n. 8.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus RILEY v. CALIFORNIA certiorari to the court of appeal of california, fourth appellate district, division one No. 13–132. Argued April 29, 2014—Decided June 25, 2014[1] In No. 13–132, petitioner Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley was convicted. The California Court of Appeal affirmed. In No. 13–212, respondent Wurie was arrested after police observed him participate in an apparent drug sale. At the police station, the officers seized a cell phone from Wurie’s person and noticed that the phone was receiving multiple calls from a source identified as “my house” on its external screen. The officers opened the phone, accessed its call log, determined the number associated with the “my house” label, and traced that number to what they suspected was Wurie’s apartment. They secured a search warrant and found drugs, a firearm and ammunition, and cash in the ensuing search. Wurie was then charged with drug and firearm offenses. He moved to suppress the evidence obtained from the search of the apartment. The District Court denied the motion, and Wurie was convicted. The First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions. Held: The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. . (a) A warrantless search is reasonable only if it falls within a specific exception to the Fourth Amendment’s warrant requirement. See Kentucky v. King, 563 U. S. ___, ___. The well-established exception at issue here applies when a warrantless search is conducted incident to a lawful arrest. Three related precedents govern the extent to which officers may search property found on or near an arrestee. Chimel v. California, 395 U.S. 752, requires that a search incident to arrest be limited to the area within the arrestee’s immediate control, where it is justified by the interests in officer safety and in preventing evidence destruction. In United States v. Robinson, 414 U.S. 218, the Court applied the Chimel analysis to a search of a cigarette pack found on the arrestee’s person. It held that the risks identified in Chimel are present in all custodial arrests, 414 U. S., at 235, even when there is no specific concern about the loss of evidence or the threat to officers in a particular case, id., at 236. The trilogy concludes with Arizona v. Gant, 556 U.S. 332, which permits searches of a car where the arrestee is unsecured and within reaching distance of the passenger compartment, or where it is reasonable to believe that evidence of the crime of arrest might be found in the vehicle, id., at 343. . (b) The Court declines to extend Robinson’s categorical rule to searches of data stored on cell phones. Absent more precise guidance from the founding era, the Court generally determines whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 300. That balance of interests supported the search incident to arrest exception in Robinson. But a search of digital information on a cell phone does not further the government interests identified in Chimel, and implicates substantially greater individual privacy interests than a brief physical search. . (1) The digital data stored on cell phones does not present either Chimel risk. . (i) Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Officers may examine the phone’s physical aspects to ensure that it will not be used as a weapon, but the data on the phone can endanger no one. To the extent that a search of cell phone data might warn officers of an impending danger, e.g., that the arrestee’s confederates are headed to the scene, such a concern is better addressed through consideration of case-specific exceptions to the warrant requirement, such as exigent circumstances. See, e.g., Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298–299. . (ii) The United States and California raise concerns about the destruction of evidence, arguing that, even if the cell phone is physically secure, information on the cell phone remains vulnerable to remote wiping and data encryption. As an initial matter, those broad concerns are distinct from Chimel’s focus on a defendant who responds to arrest by trying to conceal or destroy evidence within his reach. The briefing also gives little indication that either problem is prevalent or that the opportunity to perform a search incident to arrest would be an effective solution. And, at least as to remote wiping, law enforcement currently has some technologies of its own for combatting the loss of evidence. Finally, law enforcement’s remaining concerns in a particular case might be addressed by responding in a targeted manner to urgent threats of remote wiping, see Missouri v. McNeely, 569 U. S. ___, ___, or by taking action to disable a phone’s locking mechanism in order to secure the scene, see Illinois v. McArthur, 531 U.S. 326, 331–333. . (2) A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but more substantial privacy interests are at stake when digital data is involved. . (i) Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives. . (ii) The scope of the privacy interests at stake is further complicated by the fact that the data viewed on many modern cell phones may in fact be stored on a remote server. Thus, a search may extend well beyond papers and effects in the physical proximity of an arrestee, a concern that the United States recognizes but cannot definitively foreclose. . (c) Fallback options offered by the United States and California are flawed and contravene this Court’s general preference to provide clear guidance to law enforcement through categorical rules. See Michigan v. Summers, 452 U.S. 692, 705, n. 19. One possible rule is to import the Gant standard from the vehicle context and allow a warrantless search of an arrestee’s cell phone whenever it is reasonable to believe that the phone contains evidence of the crime of arrest. That proposal is not appropriate in this context, and would prove no practical limit at all when it comes to cell phone searches. Another possible rule is to restrict the scope of a cell phone search to information relevant to the crime, the arrestee’s identity, or officer safety. That proposal would again impose few meaningful constraints on officers. Finally, California suggests an analogue rule, under which officers could search cell phone data if they could have obtained the same information from a pre-digital counterpart. That proposal would allow law enforcement to search a broad range of items contained on a phone even though people would be unlikely to carry such a variety of information in physical form, and would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records. . (d) It is true that this decision will have some impact on the ability of law enforcement to combat crime. But the Court’s holding is not that the information on a cell phone is immune from search; it is that a warrant is generally required before a search. The warrant requirement is an important component of the Court’s Fourth Amendment jurisprudence, and warrants may be obtained with increasing efficiency. In addition, although the search incident to arrest exception does not apply to cell phones, the continued availability of the exigent circumstances exception may give law enforcement a justification for a warrantless search in particular cases. . No. 13–132, reversed and remanded; No. 13–212, 728 F.3d 1, affirmed. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment. Notes 1 Together with No. 13–212, United States v. Wurie, on certiorari to the United States Court of Appeals for the First Circuit.

Petitioner Riley, who was stopped by a police officer for driving with expired registration tags, also learned that his license had been suspended. The officer impounded Riley's car, pursuant to department policy, and another officer conducted an inventory search of the car. A search of Riley revealed a cell phone with a broad range of functions based on advanced computing capability, large storage capacity, and Internet connectivity. Riley was then charged with, inter alia, distributing crack cocaine, possessing crack cocaine with intent to distribute, and being a felon in possession of a firearm and ammunition. The District Court denied his motion to suppress the evidence obtained from the search, and he was convicted. The Court of Appeal affirmed, relying on People v. Diaz, 51 Cal. 4th 84, 244 P. 3d 501, which held that the Fourth Amendment permits a warrantless search of cell phone data incident to an arrest, so long as the cell phone was immediately associated with the arrestee's person. Prior to trial, Riley moved to suppress all evidence that the police had obtained from his cell phone, contending that the searches violated his Fourth Amendment rights because they had been performed without a warrant and were not otherwise justified by exigent circumstances. The trial court rejected that argument, and the Court of Appeals affirmed. Held: 1. In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. . (a) The search incident to arrest exception rests not only on the heightened government interests at stake in a volatile arrest situation, but also on an arrestee, who, upon being taken into police custody, has reduced privacy interests upon being subjected to a patdown search. The possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. Here, Riley conceded that officers could have seized and secured their cell phones to prevent destruction of evidence while seeking a warrant. Moreover, he regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. See, e.g., Smith v. Maryland, 442 U. S. 735 (1979) and Chimel v. Robinson, 563 U.S. 10, 14 (1981). The fact that cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on a person is not itself a sufficient justification for warrantless searches of the phone. Mobile application software on cell phones, such as cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting a phone's contents works no substantial additional intrusion on privacy beyond arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom. Similarly, there is an element of pervasiveness that characterizes cell phones but not physical records. Although the United States and California offer various fallback options for permitting warrantless cell phone searches under certain circumstances, each of them is flawed and contravenes this Court's general preference to provide clear guidance to law enforcement through categorical rules.. 2. A cell phone is vulnerable to two types of evidence destruction: remote wiping and data encryption. First, digital data stored on the phone cannot itself be used as a weapon to harm an arresting officer or to effectuate a suspect's escape. Second, data encryption is a security feature that some cell phones use in addition to password protection. Third, cell phone users often may not know whether particular information is stored on their phone or in the cloud, and little else justifies lumping them together. Fourth Amendment concerns about the loss of evidence are better addressed through consideration of case-specific exceptions such as the one for exigent situations. Finally, cell phones place vast quantities of personal information literally in the hands of individuals, and a search of such information bears little resemblance to the type of brief physical search considered in Robinson... 3. Nor is there any merit to Riley and Wurie's contention that officers should always be able to search a phone from the network, since such searches are indistinguishable from searches of other types of physical items. In addition, the Government contends that such searches cannot be justified on the basis of the safety concerns inherent in Chimel, supra, which recognized that the two risks identified in the Chimel exception are present in all custodial arrests. There are no comparable risks when the search is of digital data. And in addition, in light of the availability of such exceptions, law enforcement officers will not be unable to address some of the more extreme hypotheticals that have been suggested. Pp. 462. 612 F. Supp. 2d 104, affirmed. 728 F

2013_12-9012

https://www.oyez.org/cases/2013/12-9012

. The Mandatory Victims Restitution Act of 1996 requires certain offenders to restore property lost by their victims as a result of the crime. 18 U. S. C. §3663A. A provision in the statue says that, when return of the property lost by the victim is “impossible, impracticable, or inadequate,” the offender must pay the victim “an amount equal to . . . the value of the property” less “the value (as of the date the property is returned) of any part of the property that is returned.” §3663A(b)(1)(B). The question before us is whether “any part of the property” is “returned” when a victim takes title to collateral securing a loan that an offender fraudulently obtained from the victim. We hold that it is not. In our view, the statutory phrase “any part of the property” refers only to the specific property lost by a victim, which, in the case of a fraudulently obtained loan, is the money lent. Therefore, no “part of the property” is “returned” to the victim until the collateral is sold and the victim receives money from the sale. The import of our holding is that a sentencing court must reduce the restitution amount by the amount of money the victim received in selling the collateral, not the value of the collateral when the victim received it. I The relevant facts, as simplified, are the following: In 2005 petitioner Benjamin Robers, acting as a straw buyer, submitted fraudulent loan applications to two banks. The banks lent Robers about $470,000 for the purchase of two houses, upon which the banks took mortgages. When Robers failed to make loan payments, the banks foreclosed on the mortgages. In 2006 they took title to the two houses. In 2007 they sold one house for about $120,000. Andin 2008 they sold the other house for about $160,000. The sales took place in a falling real estate market. In 2010 Robers was convicted in federal court of conspiracy to commit wire fraud. See §§371, 1343. He was sentenced to three years of probation. And the court ordered him to pay restitution of about $220,000, roughly the $470,000 the banks lent to Robers less the $280,000 the banks received from the sale of the two houses (minus certain expenses incurred in selling them). On appeal Robers argued that the sentencing court had miscalculated his restitution obligation. In his view, “part of the property” was “returned” to the banks when they took title to the houses. And, since the statute says that “returned” property shall be valued “as of the date the property is returned,” the sentencing court should have reduced the restitution amount by more than $280,000: $280,000 was what the banks received from the sale of the houses, but since the banks sold the houses in a falling real estate market, the houses had been worth more when the banks took title to them. The Court of Appeals rejected Robers’ argument. 698 F. 3d 937 (CA7 2012). And, because different Circuits have come to different conclusions about this kind of matter, we granted Robers’ petition for certiorari. Compare id., at 942 (case below) (restitution obligation reduced by money received from sale of collateral), with United States v. Yeung, 672 F. 3d 594, 604 (CA9 2012) (restitution obligation reduced by value of collateral at time lender took title). II In our view, the phrase “any part of the property . . . returned” refers to the property the banks lost, namely, the money they lent to Robers, and not to the collateral the banks received, namely, the two houses. For one thing, that is what the statute says. The phrase is part of a long sentence that reads as follows: “(b) The order of restitution shall require that [the] defendant— “(1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of theoffense— “(A) return the property to the owner of the property . . . ; or “(B) if return of the property under subparagraph (A) is impossible, impracticable, or inadequate, pay an amount equal to— “(i) the greater of— “(I) the value of the property on the date of the damage, loss, or destruction; or “(II) the value of the property on the date of sentencing, less “(ii) the value (as of the date the property is returned) of any part of the property that is returned . . . .” §3663A (emphasis added). The words “the property” appear seven times in this sentence. If read naturally, they refer to the “property” that was “damage[d],” “los[t],” or “destr[oyed]” as a result of the crime. §3663A(b)(1). “Generally, ‘identical words used in different parts of the same statute are . . . presumed to have the same meaning.’ ” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 86 (2006) (quoting IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005) ). And, if the “property” that was “damage[d],” “los[t],” or “destr[oyed]” was the money, then “the property . . . returned” must also be the money. Money being fungible, however, see, e.g., Ransom v. FIA Card Services, N. A., 562 U. S. ___, ___ (2011) (slip op., at 17); Sabri v. United States, 541 U. S. 600, 606 (2004) , “the property . . . returned” need not be the very same bills or checks. We concede that substituting an amount of money, say, $1,000, for the words “the property” will sometimes seem awkward or unnecessary as, for example: “[I]f return of [$1,000] . . . is impossible, . . . pay an amount equal to . . . the greater of . . . the value of [$1,000] on the date of the . . . loss . . . or . . . the value of [$1,000] on the date of sentencing . . . .” §3663A(b)(1)(B). But any such awkwardness or redundancy is the linguistic price paid for having a single statutory provision that covers property of many different kinds. The provision is not awkward as applied to, say, a swindler who obtains jewelry, is unable to return all of the jewelry, and must then instead pay an amount equal to the value of all of the jewelry obtained less the value (as of the date of the return) of any of the jewelry that he did return. It directs the court to value the returned jewelry as of the date it was returned and subtract that amount from the value of all of the jewelry the swindler obtained. As applied to money, the provision is in part unnecessary but reading the statute similarly does no harm. And the law does not require legislators to write extra language specifically exempting, phrase by phrase, applications in respect to which a portion of a phrase is not needed. The natural reading also facilitates the statute’s administration. Many victims who lose money but subsequently receive other property (e.g., collateral securing a loan) will sell that other property and receive money from the sale. And often that sale will take place fairly soon after the victim receives the property. Valuing the money from the sale is easy. But valuing other property as of the time it was received may provoke argument, requiring time, expense, and expert testimony to resolve. We are not convinced by Robers’ arguments to the contrary. First, Robers says that, when a victim has not sold the collateral by the time of sentencing, our interpretation will lead to unfair results. A sentencing court will have only two choices, both undesirable. The court will either have to refuse to award restitution, thereby undercompensating the victim, or have to require the offender to pay the full amount lent to him, thereby giving the victim a windfall. In our view, however, the dilemma is a false one. Other provisions of the statute allow the court to avoid an undercompensation or a windfall. Where, for example, a sale of the collateral is foreseen but has not yet taken place, the court may postpone determination of the restitution amount for two to three months after sentencing, thereby providing the victim with additional time to sell. See §3664(d)(5). Where a victim receives, say, collateral, but does not intend to sell it, other provisions of the statute may come into play. Section 3664(f)(2) provides that upon “determination of the amount of restitution owed to each victim, the court shall . . . specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid.” Section 3664(f)(3)(A) says that a “restitution order may direct the defendant to make a single, lump-sum payment, partial payments at spec-ified intervals, in-kind payments, or a combinationof payments at specified intervals and in-kindpayments.” And §3664(f)(4) defines “in-kind payment” as including “replacement of property.” These provisions would seem to give a court adequate authority to count, as part of the restitution paid, the value of collateral previously received but not sold. Regardless, Robers has not pointed us to any case suggesting an unfairness problem. And the Government has conceded that the statute (whether through these or other provisions) provides room for “credit[s]” against an offender’s restitution obligation “to prevent double recovery to the victim.” Brief for United States 30 (emphasis deleted). Robers also points out, correctly, that the statute has a proximate cause requirement. See §3663A(a)(2) (defining “victim” as “a person directly and proximately harmed as a result of the commission of” the offense (emphasis added)); §3664(e) (Government bears the “burden of demon-strating the amount of the loss sustained by a victim as a result of the offense” (emphasis added)). Cf. Paroline v. United States, ante, at 6–11. And Robers argues that where, as here, a victim receives less money from a later sale than the collateral was worth when received, the market and not the offender is the proximate cause of the deficiency. We are not convinced. The basic question that a proximate cause requirement presents is “whether the harm alleged has a sufficiently close connection to the conduct” at issue. Lexmark Int’l, Inc. v. Static Control Components, Inc., ante, at 14. Here, it does. Fluctuations in property values are common. Their existence (though not direction or amount) is foreseeable. And losses in part incurred through a decline in the value of collateral sold are di-rectly related to an offender’s having obtained collateralized property through fraud. That is not to say that an offender is responsible for everything that reduces the amount of money a victim receives for collateral. Market fluctuations are normally unlike, say, an unexpected natural disaster that destroys collateral or a victim’s donation of collateral or its sale to a friend for a nominal sum—any of which, as the Government concedes, could break the causal chain. See Tr. of Oral Arg. 25–27, 38–39, 46, 50–51. Further, Robers argues that “principles” of state mortgage law “confirm that the return of mortgage collateral compensates a lender for its losses.” Brief for Petitioner 30. But whether the collateral compensates a victim for its losses is not the question before us. That question is whether the particular statutory provision at issue here requires that collateral received be valued at the time the victim received it. That statutory provision does not purport to track the details of state mortgage law. Thus, even were we to assume that Robers is right about the details of state mortgage law, we would not find them sufficient to change our interpretation. Finally, Robers invokes the rule of lenity. To apply this rule, we would have to assume that we could interpret the statutory provision to help an offender like Robers, who is hurt when the market for collateral declines, without harming other offenders, who would be helped when the market for collateral rises. We cannot find such an interpretation. Regardless, the rule of lenity applies only if, after using the usual tools of statutory construction, we are left with a “grievous ambiguity or uncertainty in the statute.” Muscarello v. United States, 524 U. S. 125, 139 (1998) (internal quotation marks omitted). Having come to the end of our analysis, we are left with no such ambiguity or uncertainty here. The statutory provision refers to the money lost, not to the collateral received. * * * For these reasons, the judgment of the Court of Appeals is affirmed. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus ROBERS v. UNITED STATES certiorari to the united states court of appeals for the seventh circuit No. 12–9012. Argued February 25, 2014—Decided May 5, 2014 Petitioner Robers was convicted of a federal crime for submitting fraudulent mortgage loan applications to two banks. On appeal, he argued that the District Court had miscalculated his restitution obligation under the Mandatory Victims Restitution Act of 1996, 18 U. S. C. §§3663A–3664, a provision of which requires property crime offenders to pay “an amount equal to . . . the value of the property” less “the value (as of the date the property is returned) of any part of the property that is returned,” §3663A(b)(1)(B). The District Court had ordered Robers to pay the difference between the amount lent to him and the amount the banks received in selling the houses that had served as collateral for the loans. Robers claimed that the District Court should have instead reduced the restitution amount by the value of the houses on the date the banks took title to them since that was when “part of the property” was “returned.” The Seventh Circuit rejected Robers’ argument. Held: The phrase “any part of the property . . . returned” refers to the property the banks lost, namely, the money they lent to Robers, and not to the collateral the banks received, namely, the houses. Read naturally, the words “the property,” which appear seven times in §3663A(b)(1), refer to the property that was lost as a result of the crime, here, the money. Because “[g]enerally, ‘identical words used in different parts of the same statute are . . . presumed to have the same meaning,’ ” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 86 (quoting IBP, Inc. v. Alvarez, 546 U.S. 21, 34), “the property . . . returned” must also be the property lost as a result of the crime. Any awkwardness or redundancy that comes from substituting an amount of money for the words “the property” is the linguistic price paid for having a single statutory provision that covers different kinds of property. Since valuing money is easier than valuing other types of property, the natural reading also facilitates the statute’s administration. Robers’ contrary arguments are unconvincing. First, other provisions of the statute, see, e.g., §§3664(f)(2), (3)(A), (4), seem to give courts adequate authority to avoid Robers’ false dichotomy of having to choose between refusing to award restitution and requiring the offender to pay the full amount lent where a victim has not sold the collateral by the time of sentencing. Second, for purposes of the statute’s proximate-cause requirement, see §§3663A(a)(2), 3664(e), normal market fluctuations do not break the causal chain between the offender’s fraud and the losses incurred by the victim. Third, even assuming that the return of collateral compensates lenders for their losses under state mortgage law, the issue here is whether the statutory provision, which does not purport to track state mortgage law, requires that collateral received be valued at the time the victim received it. Finally, the rule of lenity does not apply here. See Muscarello v. United States, 524 U.S. 125, 139. . 698 F.3d 937, affirmed. Breyer, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion, in which Ginsburg, J., joined.

The Mandatory Victims Restitution Act of 1996 requires certain offenders to restore property lost by their victims as a result of the crime. 18 U. S. C. §3663A(b)(1)(B). A provision in the statute provides that, when the victim takes title to collateral securing a loan that an offender fraudulently obtained from the victim, the offender must pay the victim an amount equal to the value of the property the victim received in selling the collateral, but less the value as of the date the property is returned. Petitioner, acting as a straw buyer, submitted fraudulent loan applications to two banks. The banks lent him about $470,000 for the purchase of two houses, upon which the banks took mortgages. When petitioner failed to make loan payments, the banks foreclosed on the mortgages. In 2006 they sold one house for about $120,000, and in 2008 sold the other house for $160,000. The sales took place in a falling real estate market. In 2010 petitioner was convicted in Federal District Court of conspiracy to commit wire fraud, and he was ordered to pay $220,000 in restitution. On appeal, petitioner argued that the court had miscalculated his restitution obligation by reducing the amount of the restitution amount by more than $280,000 by $280.000, since the restitution was what the banks received from the sale of the houses, but since the houses had been worth more when the banks sold them when they took title to them. The Court of Appeals rejected petitioner's argument. Held: The statutory phrase, which refers to the money the banks lent to petitioner and not to the collateral they received, is inapplicable to the property that the banks lost, namely, the money they lent to him. For one thing, the statute says that the statute requires restitution in an order to require the defendant to pay restitution in the case of an offense resulting in a loss of property resulting in an inadequate or inadequate return. Moreover, the phrase refers only to the specific property lost by a victim, which is the money lent. Therefore, no part of the property that is returned is returned until the collateral is sold and the victim receives money from a sale. . 698 F. 3d 937 (CA7 2012), affirmed. Reported below: 698. 937. (a) The phrase refers to both the bank lost and the property they received. P.. (b) The statute has a proximate cause requirement. That requirement presents the question whether the harm alleged has a sufficiently close connection to the conduct at issue. Lexmark Int’l, Inc. v. Static Control Components, Inc., ante, at 14. And the statute does not require legislators to write extra language specifically exempting, phrase by phrase, applications in respect to which a portion of a phrase is not needed. Furthermore, the natural reading also facilitates the statute's administration, since many victims who lose money but subsequently receive other property will sell that other property and receive money from that sale, and often that sale will take place fairly soon after victim receives the property. However, valuing the money from the sale is easy, and may provoke argument, requiring time, expense, and expert testimony. See, e.g., Tr. of Oral Arg. 25-27, 38-39, 46, 50-51. Similarly, the provision does not purport to track the details of state mortgage law, but, in fact, invokes the rule of lenity, which would allow the court to interpret the statutory provision to help an offender like petitioner, who is hurt when the market for collateral declines, without harming other offenders, who would be helped when the price for collateral rises. Having come to the end of this analysis, this Court is left with no such ambiguity or uncertainty here. Although the statute in question requires that collateral received be valued at the time respondent received it, it is not necessary to apply this rule to help the offender like him, who already has sold the collateral by the time of sentencing, since such an interpretation will lead to unfair results. This Court will have only two choices, both undesirable: the court will either have to refuse to award restitution, thereby undercompensating the victim; or have to require petitioner to pay the full amount lent, thereby giving the victim a windfall. Alternatively, the rule applies only if, after using the usual tools of statutory construction, we are left with a nondisclosure or uncertainty. Thus, the judgment is affirmed. ; 698. 698, 937, affirmed.

2013_12-895

https://www.oyez.org/cases/2013/12-895

.[1]* A federal criminal statute, §924(c) of Title 18, prohibits “us[ing] or carr[ying]” a firearm “during and in relation to any crime of violence or drug trafficking crime.” In this case, we consider what the Government must show when it accuses a defendant of aiding or abetting that offense. We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed. I This case arises from a drug deal gone bad. Vashti Perez arranged to sell a pound of marijuana to Ricardo Gonzales and Coby Painter. She drove to a local park to make the exchange, accompanied by two confederates, Ronald Joseph and petitioner Justus Rosemond. One of those men apparently took the front passenger seat and the other sat in the back, but witnesses dispute who was where. At the designated meeting place, Gonzales climbed into the car’s backseat while Painter waited outside. The backseat passenger allowed Gonzales to inspect the marijuana. But rather than handing over money, Gonzales punched that man in the face and fled with the drugs. As Gonzales and Painter ran away, one of the male passengers—but again, which one is contested—exited the car andfired several shots from a semiautomatic handgun. The shooter then re-entered the vehicle, and all three would-be drug dealers gave chase after the buyers-turned-robbers. But before the three could catch their quarry,a police officer, responding to a dispatcher’s alert, pulled their car over. This federal prosecution of Rosemond followed.[2] The Government charged Rosemond with, inter alia, violating §924(c) by using a gun in connection with a drug trafficking crime, or aiding and abetting that offense under §2 of Title 18. Section 924(c) provides that “any person who, during and in relation to any crime of violence or drug trafficking crime[,] . . . uses or carries a firearm,” shall receive a five-year mandatory-minimum sentence, with seven- and ten-year minimums applicable, respectively, if the firearm is also brandished or discharged. 18 U. S. C. §924(c)(1)(A). Section 2, for its part, is the federal aiding and abetting statute: It provides that “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal.” Consistent with the indictment, the Government prosecuted the §924(c) charge on two alternative theories. The Government’s primary contention was that Rosemond himself used the firearm during the aborted drug transaction. But recognizing that the identity of the shooter was disputed, the Government also offered a back-up argument: Even if it was Joseph who fired the gun as the drug deal fell apart, Rosemond aided and abetted the §924(c) violation. The District Judge accordingly instructed the jury on aiding and abetting law. He first explained, in a way challenged by neither party, the rudiments of §2. Under that statute, the judge stated, “[a] person who aids or abets another to commit an offense is just as guilty of that offense as if he committed it himself.” App. 195. And in order to aid or abet, the defendant must “willfully and knowingly associate[ ] himself in some way with the crime, and . . . seek[ ] by some act to help make the crime succeed.” Id., at 196. The judge then turned to applying those general principles to §924(c)—and there, he deviated from an instruction Rosemond had proposed. According to Rosemond, a defendant could be found guilty of aiding or abetting a §924(c) violation only if he “intentionally took some action to facilitate or encourage the use of the firearm,” as opposed to the predicate drug offense. Id., at 14. But the District Judge disagreed, instead telling the jury that it could convict if “(1) the defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the defendant knowingly and actively participated in the drug trafficking crime.” Id., at 196. In closing argument, the prosecutor contended that Rosemond easily satisfied that standard, so that even if he had not “fired the gun, he’s still guilty of the crime.” Id., at 158. After all, the prosecutor stated, Rosemond “certainly knew [of] and actively participated in” the drug transaction. Ibid. “And with regards to the other element,” the prosecutor urged, “the fact is a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun. You simply can’t do it.” Ibid. The jury convicted Rosemond of violating §924(c) (as well as all other offenses charged). The verdict form was general: It did not reveal whether the jury found that Rosemond himself had used the gun or instead had aided and abetted a confederate’s use during the marijuana deal. As required by §924(c), the trial court imposed a consec-utive sentence of 120 months of imprisonment for the statute’s violation. The Tenth Circuit affirmed, rejecting Rosemond’s argument that the District Court’s aiding and abetting instructions were erroneous.[3] The Court of Appeals acknowledged that some other Circuits agreed with Rosemond thata defendant aids and abets a §924(c) offense only if he intentionally takes “some action to facilitate or encourage his cohort’s use of the firearm.” 695 F. 3d 1151, 1155 (2012).[4] But the Tenth Circuit had already adopted a different standard, which it thought consonant with the District Court’s instructions. See, e.g., United States v. Wiseman, 172 F. 3d 1196, 1217 (1999) (requiring that the defendant “actively participated in the” underlying crime and “knew [his confederate] was carrying [a] firearm”). And the Court of Appeals held that Rosemond had presented no sufficient reason for departing from that precedent. See 695 F. 3d, at 1156. We granted certiorari, 569 U. S. ___ (2013), to resolve the Circuit conflict over what it takes to aid and abet a §924(c) offense. Although we disagree with Rosemond’s principal arguments, we find that the trial court erred in instructing the jury. We therefore vacate the judgment below. II The federal aiding and abetting statute, 18 U. S. C. §2, states that a person who furthers—more specifically, who “aids, abets, counsels, commands, induces or procures”—the commission of a federal offense “is punishable as a principal.” That provision derives from (though simplifies) common-law standards for accomplice liability. See, e.g., Standefer v. United States, 447 U. S. 10 –19 (1980); United States v. Peoni, 100 F. 2d 401, 402 (CA2 1938)(L. Hand, J.) (“The substance of [§2’s] formula goes backa long way”). And in so doing, §2 reflects a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission. See J. Hawley & M. McGregor, Criminal Law 81 (1899). We have previously held that under §2 “those who provide knowing aid to persons committing federal crimes, with the intent to facilitate the crime, are themselves committing a crime.” Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 181 (1994) . Both parties here embrace that formulation, and agree as well that it has two components. See Brief for Petitioner 28; Brief for United States 14. As at common law, a person is liable under §2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facili-tating the offense’s commission. See 2 W. LaFave, Substantive Criminal Law §13.2, p. 337 (2003) (hereinafter LaFave) (an accomplice is liable as a principal when he gives “assistance or encouragement . . . with the intent thereby to promote or facilitate commission of the crime”); Hicks v. United States, 150 U. S. 442, 449 (1893) (an accomplice is liable when his acts of assistance are done “with the intention of encouraging and abetting” the crime). The questions that the parties dispute, and we here address, concern how those two requirements—affirmative act and intent—apply in a prosecution for aiding and abetting a §924(c) offense. Those questions arise from the compound nature of that provision. Recall that §924(c) forbids “us[ing] or carr[ying] a firearm” when engaged in a “crime of violence or drug trafficking crime.” See supra, at 2. The prosecutor must show the use or carriage of a gun; so too he must prove the commission of a predicate (violent or drug trafficking) offense. See Smith v. United States, 508 U. S. 223, 228 (1993) . For purposes of ascertaining aiding and abetting liability, we therefore must consider: When does a person act to further this double-barreled crime? And when does he intend to facilitate its commission? We address each issue in turn. A Consider first Rosemond’s account of his conduct (divorced from any issues of intent). Rosemond actively par-ticipated in a drug transaction, accompanying two others to a site where money was to be exchanged for a poundof marijuana. But as he tells it, he took no actionwith respect to any firearm. He did not buy or borrow a gun to facilitate the narcotics deal; he did not carry a gun to the scene; he did not use a gun during the subsequent events constituting this criminal misadventure. His acts thus advanced one part (the drug part) of a two-part incident—or to speak a bit more technically, one element (thedrug element) of a two-element crime. Is that enough to satisfy the conduct requirement of this aiding and abetting charge, or must Rosemond, as he claims, have taken some act to assist the commission of the other (firearm) component of §924(c)? The common law imposed aiding and abetting liability on a person (possessing the requisite intent) who facili-tated any part—even though not every part—of a criminal venture. As a leading treatise, published around the time of §2’s enactment, put the point: Accomplice liability attached upon proof of “[a]ny participation in a general felonious plan” carried out by confederates. 1 F. Wharton, Criminal Law §251, p. 322 (11th ed. 1912) (hereinafter Wharton) (emphasis added). Or in the words of another standard reference: If a person was “present abetting while any act necessary to constitute the offense [was] being performed through another,” he could be charged as a principal—even “though [that act was] not the whole thing necessary.” 1 J. Bishop, Commentaries on the Criminal Law §649, p. 392 (7th ed. 1882) (emphasis added). And so “[w]here several acts constitute[d] together one crime, if each [was] separately performed by a different individual[,] . . . all [were] principals as to the whole.” Id., §650, at 392.[5] Indeed, as yet a third treatise underscored, a person’s involvement in the crime could be not merely partial but minimal too: “The quantity [of assistance was] immaterial,” so long as the accomplice did “something” to aid the crime. R. Desty, A Compendium of American Criminal Law §37a, p. 106 (1882) (emphasis added). After all, the common law maintained, every little bit helps—and a contribution to some part of a crime aids the whole. That principle continues to govern aiding and abetting law under §2: As almost every court of appeals has held, “[a] defendant can be convicted as an aider and abettor without proof that he participated in each and every element of the offense.” United States v. Sigalow, 812 F. 2d 783, 785 (CA2 1987).[6] In proscribing aiding and abetting, Congress used language that “comprehends all assistance rendered by words, acts, encouragement, support, or presence,” Reves v. Ernst & Young, 507 U. S. 170, 178 (1993) —even if that aid relates to only one (or some) of a crime’s phases or elements. So, for example, in upholding convictions for abetting a tax evasion scheme, this Court found “irrelevant” the defendants’ “non-participation” in filing a false return; we thought they had amply facilitated the illegal scheme by helping a confederate conceal his assets. United States v. Johnson, 319 U. S. 503, 515, 518 (1943) . “[A]ll who shared in [the overall crime’s] execution,” we explained, “have equal responsibility before the law, whatever may have been [their] different roles.” Id., at 515. And similarly, we approved a conviction for abetting mail fraud even though the defendant had played no part in mailing the fraudulent documents; it was enough to sat-isfy the law’s conduct requirement that he had in other ways aided the deception. See Pereira v. United States, 347 U. S. 1 –11 (1954). The division of labor between two (or more) confederates thus has no significance: A strategy of “you take that element, I’ll take this one” would free neither party from liability.[7] Under that established approach, Rosemond’s participation in the drug deal here satisfies the affirmative-act requirement for aiding and abetting a §924(c) violation. As we have previously described, the commission of a drug trafficking (or violent) crime is—no less than the use of a firearm—an “essential conduct element of the §924(c) offense.” United States v. Rodriguez-Moreno, 526 U. S. 275, 280 (1999) ; see supra, at 6. In enacting the statute, “Congress proscribed both the use of the firearm and the commission of acts that constitute” a drug trafficking crime. Rodriguez-Moreno, 526 U. S, at 281. Rosemond therefore could assist in §924(c)’s violation by facilitating either the drug transaction or the firearm use (or of course both). In helping to bring about one part of the offense (whether trafficking drugs or using a gun), he necessarily helped to complete the whole. And that ends the analysis as to his conduct. It is inconsequential, as courts applying both the common law and §2 have held, that his acts did not advance each element of the offense; all that matters is that they facilitated one component. Rosemond argues, to the contrary, that the requisite act here “must be directed at the use of the firearm,” because that element is §924(c)’s most essential feature. Brief for Petitioner 33 (arguing that “it is the firearm crime” he was really charged with aiding and abetting, “not the drug trafficking crime”). But Rosemond can provide no author-ity for demanding that an affirmative act go toward an element considered peculiarly significant; rather, as just noted, courts have never thought relevant the importance of the aid rendered. See supra, at 7–8. And in any event, we reject Rosemond’s premise that §924(c) is somehow more about using guns than selling narcotics. It is true enough, as Rosemond says in support of that theory, that §924(c) “establishes a separate, freestanding offense that is ‘distinct from the underlying [drug trafficking crime].’ ” Brief for Petitioner 32 (quoting Simpson v. United States, 435 U. S. 6, 10 (1978) ). But it is just as true that §924(c) establishes a freestanding offense distinct from any that might apply just to using a gun—say, for discharging a firearm in a public park. That is because §924(c) is, to coin a term, a combination crime. It punishes the temporal and relational conjunction of two separate acts, on the ground that together they pose an extreme risk of harm. See Muscarello v. United States, 524 U. S. 125, 132 (1998) (noting that §924(c)’s “basic purpose” was “to combat the dangerous combination of drugs and guns”). And so, an act relating to drugs, just as much as an act relating to guns, facilitates a §924(c) violation. Rosemond’s related argument that our approach would conflate two distinct offenses—allowing a conviction for abetting a §924(c) violation whenever the prosecution shows that the defendant abetted the underlying drug trafficking crime—fares no better. See Brief for Petitioner 38. That is because, as we will describe, an aiding and abetting conviction requires not just an act facilitating one or another element, but also a state of mind extending to the entire crime. See infra, at 11. And under that rule, a defendant may be convicted of abetting a §924(c) violation only if his intent reaches beyond a simple drug sale, to an armed one. Aiding and abetting law’s intent component—to which we now turn—thus preserves the distinction between assisting the predicate drug trafficking crime and assisting the broader §924(c) offense. B Begin with (or return to) some basics about aiding and abetting law’s intent requirement, which no party here disputes. As previously explained, a person aids and abets a crime when (in addition to taking the requisite act) he intends to facilitate that offense’s commission. See supra, at 5–6. An intent to advance some different or lesser offense is not, or at least not usually, sufficient: Instead, the intent must go to the specific and entire crime charged—so here, to the full scope (predicate crime plus gun use) of §924(c). See, e.g., 2 LaFave §13.2(c); W. Clark & W. Marshall, Law of Crimes, §187, pp. 251–253 (2d ed. 1905); ALI, Model Penal Code §2.06 Comment, p. 306 (1985).[8] And the canonical formulation of that needed state of mind—later appropriated by this Court and oft-quoted in both parties’ briefs—is Judge Learned Hand’s: To aid and abet a crime, a defendant must not just “in some sort associate himself with the venture,” but also “participate in it as in something that he wishes to bring about” and “seek by his action to make it succeed.” Nye & Nissen v. United States, 336 U. S. 613, 619 (1949) (quoting Peoni, 100 F. 2d, at 402; see Brief for Petitioner 20, 28, 41; Brief for United States 14, 51. We have previously found that intent requirement satisfied when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense. In Pereira, the mail fraud case discussed above, we found the requisite intent for aiding and abetting because the defendant took part in a fraud “know[ing]” that his confederate would take care of the mailing. 347 U. S., at 12; see supra, at 8. Likewise, in Bozza v. United States, 330 U. S. 160, 165 (1947) , we up-held a conviction for aiding and abetting the evasion of liquor taxes because the defendant helped operate a clandestine distillery “know[ing]” the business was set up “to violate Government revenue laws.” And several Courts of Appeals have similarly held—addressing a fact pattern much like this one—that the unarmed driver of a getaway car had the requisite intent to aid and abet armed bank robbery if he “knew” that his confederates would use weapons in carrying out the crime. See, e.g., United States v. Akiti, 701 F. 3d 883, 887 (CA8 2012); United States v. Easter, 66 F. 3d 1018, 1024 (CA9 1995). So for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme’s commission.[9] The same principle holds here: An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope—that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen (like the abettors in Pereira and Bozza or the driver in an armed robbery) to align himself with the illegal scheme in its entirety—including its use of a firearm. And he has determined (again like those other abettors) to do what he can to “make [that scheme] succeed.” Nye & Nissen, 336 U. S., at 619. He thus becomes responsible, in the typical way of aiders and abettors, for the conduct of others. He may not have brought the gun to the drug deal himself, but because he took part in that deal knowing a confederate would do so, he intended the commission of a §924(c) offense—i.e., an armed drug sale. For all that to be true, though, the §924(c) defendant’s knowledge of a firearm must be advance knowledge—or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice. When an accomplice knows beforehand of a confederate’s design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a §924(c) violation unless he has “foreknowledge that his confederate will commit the offense with a firearm.” Brief for United States 38; see also infra, at 15–17. For the reasons just given, we think that means knowledge at a time the accomplice can do something with it—most notably, opt to walk away.[10] Both parties here find something to dislike in our view of this issue. Rosemond argues that a participant in a drug deal intends to assist a §924(c) violation only if he affirmatively desires one of his confederates to use a gun. See Reply Brief 8–11. The jury, Rosemond concedes, could infer that state of mind from the defendant’s advance knowledge that the plan included a firearm. See Tr. of Oral Arg. 5. But according to Rosemond, the instructions must also permit the jury to draw the opposite conclusion—that although the defendant participated in a drugdeal knowing a gun would be involved, he did not spe-cifically want its carriage or use. That higher standard, Rosemond claims, is necessary to avoid subjecting persons of different culpability to the same punishment. Rosemond offers as an example an unarmed driver assisting in the heist of a store: If that person spent the drive “trying to persuade [his confederate] to leave [the] gun behind,” then he should be convicted of abetting shoplifting, but not armed robbery. Reply Brief 9. We think not. What matters for purposes of gauging intent, and so what jury instructions should convey, is that the defendant has chosen, with full knowledge, to participate in the illegal scheme—not that, if all had been left to him, he would have planned the identical crime. Consider a variant of Rosemond’s example: The driver of a getaway car wants to help rob a convenience store (and argues passionately for that plan), but eventually accedes when his confederates decide instead to hold up a national bank. Whatever his original misgivings, he has the requisite intent to aid and abet bank robbery; after all, he put aside those doubts and knowingly took part in that more dangerous crime. The same is true of an accomplice who knowingly joins in an armed drug transaction—regardless whether he was formerly indifferent or even resistant to using firearms. The law does not, nor should it, care whether he participates with a happy heart or a sense of foreboding. Either way, he has the same culpability, because either way he has knowingly elected to aid in the commission of a peculiarly risky form of offense. A final, metaphorical way of making the point: By virtue of §924(c), using a firearm at a drug deal ups the ante. A would-be accomplice might decide to play at those perilous stakes. Or he might grasp that the better course is to fold his hand. What he should not expect is the capacity to hedge his bets, joining in a dangerous criminal scheme but evading its penalties by leaving use of the gun to someone else. Aiding and abetting law prevents that outcome, so long as the player knew the heightened stakes when he decided to stay in the game. The Government, for its part, thinks we take too strict a view of when a defendant charged with abetting a §924(c) violation must acquire that knowledge. As noted above, the Government recognizes that the accused accomplice must have “foreknowledge” of a gun’s presence. Brief for United States 38; see supra, at 13. But the Government views that standard as met whenever the accomplice, having learned of the firearm, continues any act of assisting the drug transaction. See Brief for United States 48. According to the Government, the jury should convict such a defendant even if he became aware of the gun only after he realistically could have opted out of the crime. But that approach, we think, would diminish too far the requirement that a defendant in a §924(c) prosecution must intend to further an armed drug deal. Assume,for example, that an accomplice agrees to participate in a drug sale on the express condition that no one brings a gun to the place of exchange. But just as the parties are making the trade, the accomplice notices that one of his confederates has a (poorly) concealed firearm in his jacket. The Government would convict the accomplice of aiding and abetting a §924(c) offense if he assists in completing the deal without incident, rather than running away or otherwise aborting the sale. See Tr. of Oral Arg. 40. But behaving as the Government suggests might increase the risk of gun violence—to the accomplice himself, other participants, or bystanders; and conversely, finishing the sale might be the best or only way to avoid that danger. In such a circumstance, a jury is entitled to find that the defendant intended only a drug sale—that he never intended to facilitate, and so does not bear responsibility for, a drug deal carried out with a gun. A defendant manifests that greater intent, and incurs the greater liability of §924(c), when he chooses to participate in a drug transaction knowing it will involve a firearm; but he makes no such choice when that knowledge comes too late for him to be reasonably able to act upon it.[11] III Under these principles, the District Court erred in instructing the jury, because it did not explain that Rosemond needed advance knowledge of a firearm’s presence. Recall that the court stated that Rosemond was guilty of aiding and abetting if “(1) [he] knew his cohort used a firearm in the drug trafficking crime, and (2) [he] knowingly and actively participated in the drug trafficking crime.” App. 196. We agree with that instruction’s second half: As we have explained, active participation in a drug sale is sufficient for §924(c) liability (even if the conduct does not extend to the firearm), so long as the defendant had prior knowledge of the gun’s involvement. See supra, at 9, 11–13. The problem with the court’s instruction came in its description of that knowledge requirement. In telling the jury to consider merely whether Rosemond “knew his cohort used a firearm,” the court did not direct the jury to determine when Rosemond obtained the requisite knowledge. So, for example, the jury could have convicted even if Rosemond first learned of the gun when it was fired and he took no further action to advance the crime. For that reason, the Government itself describes the instruction’s first half as “potentially misleading,” candidly explaining that “it would have been clearer to say” that Rosemond had to know that his confederate “ ‘ would use’ [a firearm] or something . . . that makes absolutely clear that you [need] foreknowledge.” Tr. of Oral Arg. 48–49. We agree with that view, and then some: The court’s statement failed to convey that Rosemond had to have advance knowledge, of the kind we have described, that a confederate would be armed. See supra, at 13,15–16. The Government contends that this problematic instruction looks more accurate when viewed in context. In particular, the Government points to the District Court’s prefatory “umbrella instruction” that to aid or abet a crime, a defendant must “willfully and knowingly seek[ ] by some act to help make the crime succeed.” App. 196; Brief for United States 49. That statement, the Government rightly notes, “mirrors” Judge Hand’s classic formulation. Tr. of Oral Arg. 33; see supra, at 11. But the statement is also pitched at a high level of generality. Immediately afterward, the District Court provided the jury with the two-pronged test noted above—thus indicating how the broad principle should apply to the specific charge of abetting a §924(c) offense. We therefore do not see how the “umbrella” statement could have cured the court’s error. Indeed, a different contextual feature of the case would only have amplified that mistake. As earlier described, the prosecutor asserted in closing argument that the court’s test was easily satisfied because “a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun.” App. 158; see supra, at 3–4. The prosecutor thus invited the jury to convict Rosemond even if he first learned of the gun asit was discharged, and no matter what he did afterward. Once again, then, the message to the jury was that it need not find advance knowledge—exactly what we (and for that matter the Government) have said is required. We send this case back to the Tenth Circuit to consider the appropriate consequence, if any, of the District Court’s error. The Government makes two arguments relevant to that inquiry. First, it contends that Rosemond failed to object specifically to the part of the trial court’s instructions we have found wanting; thus, the Government asserts, a plain-error standard should apply to his claim. See Fed. Rule Crim. Proc. 52(b); Johnson v. United States, 520 U. S. 461 –467 (1997). Second, the Government argues that any error in the court’s aiding and abetting instruction was harmless, because the jury must have found (based on another part of its verdict, not discussed here) that Rosemond himself fired the gun. Those claims were not raised or addressed below, and we see no special reason to decide them in the first instance. See Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U. S. 443, 455 (2007) . Accordingly, we vacate the judgment below and remand the case for further proceedings consistent with this opinion. It is so ordered.Notes 1 * joins all but footnotes 7 and 8 of this opinion. 2 The Government agreed not to bring charges against the other four participants in the narcotics deal in exchange for their giving truthful testimony against Rosemond. See 2 Record 245, 272, 295–296, 318. 3 The Court of Appeals stated that it had to address that argument even if the jury could have found that Rosemond himself fired the gun, because “a conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one.” 695 F. 3d 1151, 1154 (2012) (quoting v. , ()). 4 See, , v. , 502 F. 3d 750, 758–759 (CA8 2007); v. , 376 F. 3d 1, 6 (CA1 2004); v. , 110 F. 3d 1425, 1429–1430 (CA9 1997). 5 The Wharton treatise gave the following example of how multiple confederates could perform different roles in carrying out a crime. Assume, Wharton hypothesized, that several persons “act in concert to steal a man’s goods.” Wharton §251, at 322. The victim is “induced by fraud to trust one of them[,] in the presence of [the] others[,] with the [goods’] possession.” Afterward, “another of the party entice[s] the owner away so that he who has the goods may carry them off.” ., at 322–323Wharton concludes: “[A]ll are guilty as principals.” ,at 323. 6 See also v. , 718 F. 3d 929, 939 (CADC 2013) (“[P]roving a defendant guilty of aiding and abetting does not ordinarily require the government to establish participation in each . . . element of the underlying offense”); v. , 449 F. 3d 1168, 1176 (CA11 2006) (“The government was not required to prove that [the defendant] participated in each element of the substantive offense in order to hold him liable as an aider and abettor”); v. , 148 F. 3d 843, 850 (CA7 1998) (“[T]he government need not prove assistance related to every element of the underlying offense”). And so forth and so on. 7 Consider a hypothetical similar to and (and a modern variant of the Wharton treatise’s, see n. 4, ). Suppose that as part of a kidnapping scheme, one accomplice lures the victim into a car under false pretenses; another drives the vehicle; a third allows the use of her house to hold the victim captive; and still a fourth keeps watch outside to divert potential witnesses. None would have personally completed, or even assisted with, all elements of the offense. See, ,v., 504 F. 3d 576, 580 (CA5 2007) (listing elements). But (if they had the requisite intent) all would be liable under §2. 8 Some authorities suggest an exception to the general rule when another crime is the “natural and probable consequence” of the crime the defendant intended to abet. See, ,2 LaFave §13.3(b), at 356 (citing cases); but see , §13.3 (“Under the better view, one is not an accomplice to a crime merely because . . . that crime was a natural and probable consequence of another offense as to which he is an accomplice”). That question is not implicated here, because no one contends that a §924(c) violation is a natural and probable consequence of simple drug trafficking. We therefore express no view on the issue. 9 We did not deal in these cases, nor do we here, with defendants who incidentally facilitate a criminal venture rather than actively participate in it. A hypothetical case is the owner of a gun store who sells a firearm to a criminal, knowing but not caring how the gun will be used. We express no view about what sort of facts, if any, would suffice to show that such a third party has the intent necessary to be convicted of aiding and abetting. 10 Of course, if a defendant continues to participate in a crime after a gun was displayed or used by a confederate, the jury can permissibly infer from his failure to object or withdraw that he had such knowledge. In any criminal case, after all, the factfinder can draw inferences about a defendant’s intent based on all the facts and circumstances of a crime’s commission. 11 Contrary to the dissent’s view, see , at 3–4,nothing in this holding changes the way the defenses of duress and necessity operate. Neither does our decision remotely deny that the “intent to undertake some act is . . . perfectly consistent with the motive of avoiding adverse consequences which would otherwise occur.” at 5. Our holding is grounded in the distinctive intent standard for aiding and abetting someone else’s act—in the words of Judge Hand, that a defendant must not just “in some sort associate himself with the venture” (as seems to be good enough for the dissent), but also “participate in it as in something that he wishes to bring about” and “seek by his action to make it succeed.” v. , (quoting , 100 F. 2d, at 402). For the reasons just given, see at 13, 15–16, we think that intent standard cannot be satisfied if a defendant charged with aiding and abetting a §924(c) offense learns of a gun only after he can realistically walk away—when he has no opportunity to decide whether “he wishes to bring about” (or make succeed) an drug transaction, rather than a simple drug crime. And because a defendant’s prior knowledge is part of the intent required to aid and abet a §924(c) offense, the burden to prove it resides with the Government.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus ROSEMOND v. UNITED STATES certiorari to the united states court of appeals for the tenth circuit No. 12–895. Argued November 12, 2013—Decided March 5, 2014 Petitioner Justus Rosemond took part in a drug deal in which either he or one of his confederates fired a gun. Because the shooter’s identity was disputed, the Government charged Rosemond with violating 18 U. S. C. §924(c) by using or carrying a gun in connection with a drug trafficking crime, or, in the alternative, aiding and abetting that offense under 18 U. S. C. §2. The trial judge instructed the jury that Rosemond was guilty of aiding and abetting the §924(c) offense if he (1) “knew his cohort used a firearm in the drug trafficking crime” and (2) “knowingly and actively participated in the drug trafficking crime.” This deviated from Rosemond’s proposed instruction that the jury must find that he acted intentionally “to facilitate or encourage” the firearm’s use, as opposed to merely the predicate drug offense. Rosemond was convicted, and the Tenth Circuit affirmed, rejecting his argument that the District Court’s aiding and abetting instructions were erroneous. Held: 1. The Government establishes that a defendant aided and abetted a §924(c) violation by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission. . (a) The federal aiding and abetting statute, which derives from common-law standards for accomplice liability, has two components. A person is liable under §2 only if he (1) takes an affirmative act in furtherance of the underlying offense (2) with the intent to facilitate that offense’s commission. . (b) The first question is whether Rosemond’s conduct was sufficient to satisfy the affirmative act requirement of aiding and abetting. Section 924(c) has two elements: a drug deal or violent crime, and using or carrying a firearm in connection with that crime. The instructions permitted the jury to convict Rosemond of aiding and abetting even if he facilitated only the drug element, and not the gun element, of the §924(c) offense. Those instructions were correct. The common law imposed aiding and abetting liability on a person who facilitated any element of a criminal offense, even if he did not facilitate all elements. That principle continues to govern §2. See, e.g., United States v. Johnson, 319 U.S. 503, 515. . (c) In addition to conduct extending to some part of the crime, aiding and abetting requires intent extending to the whole crime. The defendant must not just associate himself with the venture, but also participate in it as something that he wishes to bring about and seek by his actions to make it succeed. Nye & Nissen v. United States, 336 U.S. 613, 619. That requirement is satisfied when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense. See Pereira v. United States, 347 U.S. 1, 12. An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. This must be advance knowledge—meaning, knowledge at a time when the accomplice has a reasonable opportunity to walk away. . 2. The trial court’s jury instructions were erroneous because they failed to require that Rosemond knew in advance that one of his cohorts would be armed. In telling the jury to consider merely whether Rosemond “knew his cohort used a firearm,” the court did not direct the jury to determine when Rosemond obtained the requisite knowledge—i.e., to decide whether Rosemond knew about the gun in sufficient time to withdraw from the crime. The case is remanded to permit the Tenth Circuit to address whether this objection was properly preserved and whether any error was harmless. . 695 F.3d 1151, vacated and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined, and in which Scalia, J., joined in all but footnotes 7 and 8. Alito, J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined.

Petitioner Rosemond was charged with violating 18 U.S.C. §924(c) by using a gun in connection with a drug trafficking crime or aiding and abetting that offense under 18 U S. C. §2, which provides that a person who aids or abets another to commit an offense is just as guilty of that offense as if he committed it himself. Section 2 provides that, in order to aid or abet, the defendant must knowingly associate himself in some way with the crime, and seek to help make the crime succeed. The District Judge instructed the jury that aiding or abetting law was a principal predicate of the §2 offense, and that Rosemond could be found guilty only if he (1) took an affirmative act in furtherance of the offense, (2) with the intent of facili-tating the offense's commission, and (3) aided and abetted the violation. The jury found Rosemond guilty, but the judge deviated from an instruction that a defendant could be convicted only if the defendant knew of or actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission. The trial court imposed a penalty of 120 months of imprisonment for the statute. The Tenth Circuit affirmed, rejecting Rosemond's argument that the District Court's aiding & abetting instructions were erroneous. Held: The judgment is vacated and the case is remanded. ;;. 685 F. 3d 1151, vacated and remanded for further proceedings. PER CURIAM. The jury instructions given below were erroneous because they failed to require Rosemond to take some act to assist the commission of the other (firearm) component of §2 of Title 18. . (a) An active participant in a drug transaction, such as Rosemond, has the intent needed to aid and abate a § 924(b) violation when he knows that one of his confederates will carry a firearm. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope. He has chosen to align himself with the illegal scheme in its entirety, including its use of a firearm, and thus becomes responsible, in the typical way of aiders and abettors, for the conduct of others. Even if he did not bring the gun to the drug deal himself, he would have intended to assist in the crime. Moreover, a defendant can be convicted even if he first learned of the gun asit was discharged, and no matter what he did afterward. Such an approach will diminish too far the requirement that an accomplice must have advance knowledge of a gun. A defendant manifests that greater intent, and incurs the greater liability of §9 24(c), when he chooses to participate in the drug transaction knowing it will involve a firearm; but he makes no such choice when that knowledge comes too late for him to be reasonably able to act upon it. Under these principles, a jury is entitled to find that the defendant intended only a drug sale, that he never intended to facilitate, and so does not bear responsibility for, a drug deal carried out with a gun, and since a defendant manifests such intent when, as here, he chooses not just to participate in drug transactions, but also knowingly and deliberately participates in that illegal scheme. See, e.g., 2 LaFave §13.2(c); Bozza v. United States, 330 U. S. 160, 165 (1947). Under those principles, the jury instructions must also permit the jury to draw the opposite conclusion. Because a defendant had prior knowledge of the firearm, the burden to prove it resides with the Government. Pp. 695 F. 3d, 1151. (b), The District Court erred in instructing the jury, because it did not explain to the jury the specific and entire crime charged. The instruction, in its description of that knowledge requirement, failed to direct the jury so as to determine when Rosemond obtained the requisite knowledge. It is inconsequential, as courts applying both the common law and §2 have held, that his acts did not advance each element of the offense; all that matters is that they facilitated one component. Thus, the instruction failed to convey that the requisite act must be directed at the use of the firearms, since the firearm was the firearm element of the intent required to aid aid and abet the offense. This Court rejects Rosemond on the ground that the introduction of the two-pronged test noted above, which indicated how the broad principle should apply to the specific charge of abetting, did not cure the court's error. Since the prosecutor asserted that the test was easily satisfied because a person cannot be present and active at a drugdeal when shots are fired

2013_12-417

https://www.oyez.org/cases/2013/12-417

.[1]* The question before us is the meaning of the phrase “changing clothes” as it appears in the Fair Labor Standards Act of 1938, 52Stat. 1060, as amended, 29 U. S. C. §201 et seq. (2006 ed. and Supp. V). I. Facts and Procedural History Petitioner Clifton Sandifer, among others, filed suit under the Fair Labor Standards Act against respondent United States Steel Corporation in the District Court for the Northern District of Indiana. The plaintiffs in this putative collective action are a group of current or former employees of respondent’s steelmaking facilities.[2] As relevant here, they seek backpay for time spent donning and doffing various pieces of protective gear. Petitioners assert that respondent requires workers to wear all of the items because of hazards regularly encountered in steel plants. Petitioners point specifically to 12 of what they state are the most common kinds of required protective gear: a flame-retardant jacket, pair of pants, and hood; a hardhat; a “snood”; “wristlets”; work gloves; leggings; “metatarsal” boots; safety glasses; earplugs; and a respirator.[3] At bottom, petitioners want to be paid for the time they have spent putting on and taking off those objects. In the aggregate, the amount of time—and thus money—involved is likely to be quite large. Because this donning-and-doffing time would otherwise be compensable under the Act, U. S. Steel’s contention of noncompensability stands or falls upon the validity of a provision of its collective-bargaining agreement with petitioners’ union, which says that this time is noncompensable.[4] The validity of that provision depends, in turn, upon the applicability of 29 U. S. C. §203(o) to the time at issue. That subsection allows parties to decide, as part of a collective-bargaining agreement, that “time spent in changing clothes . . . at the beginning or end of each workday” is noncompensable. The District Court granted summary judgment in pertinent part to U. S. Steel, holding that donning and doffing the protective gear constituted “changing clothes” within the meaning of §203(o). No. 2:07–CV–443 RM, 2009 WL 3430222, *4–*10 (ND Ind., Oct. 15, 2009). The District Court further assumed that even if certain items—the hardhat, glasses, and earplugs—were not “clothes,” the time spent donning and doffing them was “de minimis” and hence noncompensable. Id., at *6. The Court of Appeals for the Seventh Circuit upheld those conclusions. 678 F. 3d 590, 593–595 (2012).[5] We granted certiorari, 568 U. S. ___ (2013), and now affirm. II. Legal Background The Fair Labor Standards Act, enacted in 1938, governs minimum wages and maximum hours for non-exempt “employees who in any workweek [are] engaged in commerce or in the production of goods for commerce, or [are] employed in an enterprise engaged in commerce or in the production of goods for commerce.” 29 U. S. C. §206(a) (minimum wages); §207(a) (maximum hours); see §213 (exemptions). The Act provides that “employee” generally means “any individual employed by an employer,” §203(e)(1), and, in turn, provides that to “employ” is “to suffer or permit to work,” §203(g). The Act did not, however, define the key terms “work” and “workweek”—an omission that soon let loose a landslide of litigation. See IBP, Inc. v. Alvarez, 546 U. S. 21 –26 (2005). This Court gave those terms a broad reading, culminating in its holding in Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680 (1946) , that “the statutory workweek includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” Id., at 690–691. That period, Anderson explained, encompassed time spent “pursu[ing] certain preliminary activities after arriving . . . , such as putting on aprons and overalls [and] removing shirts.” Id., at 692–693. “These activities,” the Court declared, “are clearly work” under the Act. Id., at 693. Organized labor seized on the Court’s expansive construction of compensability by filing what became known as “portal” actions (a reference to the “portals” or entrances to mines, at which workers put on their gear). “PORTAL PAY SUITS EXCEED A BILLION,” announced a newspaper headline in late 1946. N. Y. Times, Dec. 29, 1946, p. 1. Stating that the Fair Labor Standards Act had been “interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees,” Congress responded by passing the Portal-to-Portal Act of 1947, 61Stat. 84, as amended, 29 U. S. C. §251 et seq. (2006 ed. and Supp. V). §251(a). The Portal-to-Portal Act limited the scope of employers’ liability in various ways. As relevant here, it excluded from mandatorily compensable time “activities which are preliminary to or postliminary to [the] principal activity or activities [that an employee is employed to perform], which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.” 61Stat. 87, 29 U. S. C. §254(a)(2). The Department of Labor promulgated a regulation explaining that the Portal-to-Portal Act did not alter what is known as the “continuous workday rule,” under which compensable time comprises “the period between the commencement and completion on the same workday of an employee’s principal activity or activities . . . [,] whether or not the employee engages in work throughout all of that period.” 12 Fed. Reg. 7658 (1947); 29 CFR §790.6(b) (2013). Of particular importance to this case, a Labor Department interpretive bulletin also specified that whereas “changing clothes” and “washing up or showering” “would be considered ‘preliminary’ or ‘postliminary’ activities” when “performed outside the workday and . . . under the conditions normally present,” those same activities “may in certain situations be so directly related to the specific work the employee is employed to perform that [they] would be regarded as an integral part of the employee’s ‘principal activity.’ ” 12 Fed. Reg. 7659, and n. 49; 29 CFR §790.7, and n. 49. In 1949, Congress amended the Fair Labor Standards Act to address the conduct discussed in that interpretive bulletin—changing clothes and washing—by adding the provision presently at issue: “Hours Worked.—In determining for the purposes of [the minimum-wage and maximum-hours sections] of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.” 63Stat. 911, 29 U. S. C. §203(o). Simply put, the statute provides that the compensability of time spent changing clothes or washing is a subject appropriately committed to collective bargaining. In Steiner v. Mitchell, 350 U. S. 247 (1956) , the Court echoed the Labor Department’s 1947 regulations by holding that “changing clothes and showering” can, under some circumstances, be considered “an integral and indispensable part of the principal activities for which covered workmen are employed,” reasoning that §203(o) “clear[ly] impli[ed]” as much. Id., at 254–256. And in IBP, we applied Steiner to treat as compensable the donning and doffing of protective gear somewhat similar to that at issue here, 546 U. S., at 30. We said that “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ ” under §254(a), id., at 37. As relevant to the question before us, U. S. Steel does not dispute the Seventh Circuit’s conclusion that “[h]ad the clothes-changing time in this case not been rendered noncompensable pursuant to [§]203(o), it would have been a principal activity.” 678 F. 3d, at 596. Petitioners, however, quarrel with the premise, arguing that the donning and doffing of protective gear does not qualify as “changing clothes.” III. Analysis A. “Clothes” We begin by examining the meaning of the word “clothes.”[6] It is a “fundamental canon of statutory construction” that, “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U. S. 37, 42 (1979) . Dictionaries from the era of §203(o)’s enactment indicate that “clothes” denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress. See Webster’s New International Dictionary of the English Language 507 (2d ed. 1950) (Webster’s Second) (defining “clothes” as “[c]overing for the human body; dress; vestments; vesture”); see also, e.g., 2 Oxford English Dictionary 524 (1933) (defining “clothes” as “[c]overing for the person; wearing apparel; dress, raiment, vesture”). That is what we hold to be the meaning of the word as used in §203(o). Although a statute may make “a departure from the natural and popular acceptation of language,” Greenleaf v. Goodrich, 101 U. S. 278 –285 (1880) (citing Maillard v. Lawrence, 16 How. 251 (1854)), nothing in the text or context of §203(o) suggests anything other than the ordinary meaning of “clothes.” Petitioners argue that the word “clothes” is too indeterminate to be ascribed any general meaning but that, whatever it includes, it necessarily excludes items designed and used to protect against workplace hazards. That position creates a distinction between “protection,” on the one hand, and “decency or comfort,” on the other—a distinction that petitioners appear to have derived from Webster’s Second, which elaborates that “clothes” is “a general term for whatever covering is worn, or is made to be worn, for decency or comfort.” Webster’s Second 507 (emphasis added). But that definition does not exclude, either explicitly or implicitly, items with a protective function, since “protection” and “comfort” are not incompatible, and are often synonymous. A parasol protects against the sun, enhancing the comfort of the bearer—just as work gloves protect against scrapes and cuts, enhancing the comfort of the wearer. Petitioners further assert that protective items of apparel are referred to as “clothing” rather than “clothes.” They point out that, when introduced by the adjective “protective,” the noun “clothing” is used more commonly than “clothes.” That is true enough, but it seems to us explained by euphonic preference rather than difference in meaning. We see no basis for the proposition that the unmodified term “clothes” somehow omits protective clothing. Petitioners’ proffered distinction, moreover, runs the risk of reducing §203(o) to near nothingness. The statutory compensation requirement to which §203(o) provides an exception embraces the changing of clothes only when that conduct constitutes “an integral and indispensable part of the principal activities for which covered workmen are employed.” Steiner, 350 U. S., at 256. But protective gear is the only clothing that is integral and indispensable to the work of factory workers, butchers, longshoremen, and a host of other occupations. Petitioners’ definition of “clothes” would largely limit the application of §203(o) to what might be called workers’ costumes, worn by such employees as waiters, doormen, and train conductors. Petitioners insist that their definition excludes only items with some specific work-hazard-related protective function, but that limitation essentially abandons the assertion that clothes are for decency or comfort, leaving no basis whatever for the distinction. Petitioners’ position is also incompatible with the historical context surrounding §203(o)’s passage, since it flatly contradicts an illustration provided by the Labor Department’s 1947 regulations to show how “changing clothes” could be intimately related to a principal activity. See 29 CFR §790.7, and n. 49. Those regulations cited the situation in which “an employee in a chemical plant . . . cannot perform his [job] without putting on certain clothes” and specified that “[s]uch a situation may exist where the changing of clothes on the employer’s premises is required by law, by rules of the employer, or by the nature of the work.” 12 Fed. Reg. 7660, and n. 65; 29 CFR §790.8(c), and n. 65. And petitioners’ position contradicts this Court’s only prior opinion purporting to interpret §203(o). Steiner, announced less than a decade after the statute’s passage, suggested in dictum that, were there a pertinent provision of a collective-bargaining agreement, §203(o) would have applied to the facts of that case—where workers “ma[d]e extensive use of dangerously caustic and toxic materials, and [we]re compelled by circumstances, including vital considerations of health and hygiene, to change clothes” on the job site. 350 U. S., at 248, 254–255. Petitioners contend that any attempt at a general definition of “clothes” will cast a net so vast as to capture all manner of marginal things—from bandoliers to barrettes to bandages. Yet even acknowledging that it may be impossible to eliminate all vagueness when interpreting a word as wide-ranging as “clothes,” petitioners’ fanciful hypotheticals give us little pause. The statutory context makes clear that the “clothes” referred to are items that are integral to job performance; the donning and doffing of other items would create no claim to compensation under the Act, and hence no need for the §203(o) exception. Moreover, even with respect to items that can be regarded as integral to job performance, our definition does not embrace the view, adopted by some Courts of Appeals, that “clothes” means essentially anything worn on the body—including accessories, tools, and so forth. See, e.g., Salazar v. Butterball, LLC, 644 F. 3d 1130, 1139–1140 (CA10 2011) (“clothes” are “items or garments worn by a person” and include “knife holders”). The construction we adopt today is considerably more contained. Many accessories—necklaces and knapsacks, for instance—are not “both designed and used to cover the body.” Nor are tools “commonly regarded as articles of dress.” Our definition leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices.[7] Respondent and its amici, by contrast, give the term in question a capacious construction, effectively echoing the Courts of Appeals mentioned above. On this view, “clothes” encompasses the entire outfit that one puts on to be ready for work. That interpretation is, to be sure, more readily administrable, but it is even more devoid of a textual foundation than petitioners’ offering. Congress could have declared bargainable under §203(o) “time spent in changing outfits,” or “time spent in putting on and off all the items needed for work.” For better or worse, it used the narrower word “clothes.” “The role of this Court is to apply the statute as it is written—even if we think some other approach might accord with good policy.” Burrage v. United States, ante at 14 (internal quotation marks and brackets omitted). B. “Changing” Having settled upon the meaning of “clothes,” we must now consider the meaning of “changing.” Petitioners assert that when used with certain objects—such as “tire,” “diaper,” or, indeed, “clothes”—the term “changing” connotes substitution. That is undoubtedly true. See Webster’s Second 448 (defining “change” as “to make substitutionof, for, or among, often among things of the same kind. . . ; as, to change one’s clothes”). One would not normally say he has changed clothes when he puts on an overcoat. Petitioners conclude from this that items of protective gear that are put on over the employee’s street clothes are not covered by §203(o). We disagree. Although it is true that the normal meaning of “changing clothes” connotes substitution, the phrase is certainly able to have a different import. The term “changing” carried two common meanings at the time of §203(o)’s enactment: to “substitute” and to “alter.” See, e.g., 2 Oxford English Dictionary 268 (defining “change,” among other verb forms, as “to substitute another (or others) for, replace by another (or others)” and “[t]o make (a thing) other than it was; to render different, alter, modify, transmute”). We think that despite the usual meaning of “changing clothes,” the broader statutory context makes it plain that “time spent in changing clothes” includes time spent in altering dress. The object of §203(o) is to permit collective bargaining over the compensability of clothes-changing time and to promote the predictability achieved through mutually beneficial negotiation. There can be little predictability, and hence little meaningful negotiation, if “changing” means only “substituting.” Whether one actually exchanges street clothes for work clothes or simply layers garments atop one another after arriving on the job site is often a matter of purely personal choice. That choice may be influenced by such happenstances and vagaries as what month it is, what styles are in vogue, what time the employee wakes up, what mode of transportation he uses, and so on. As the Fourth Circuit has put it, if the statute imposed a substitution requirement “compensation for putting on a company-issued shirt might turn on something as trivial as whether the employee did or did not take off the t-shirt he wore into work that day.” Sepulveda v. Allen Family Foods, Inc., 591 F. 3d 209, 216 (2009). Where another reading is textually permissible, §203(o) should not be read to allow workers to opt into or out of its coverage at random or at will.[8] C. Application Applying the foregoing principles to the facts of this case, we hold that petitioners’ donning and doffing of the protective gear at issue qualifies as “changing clothes” within the meaning of §203(o). Petitioners have pointed to 12 particular items: a flame-retardant jacket, pair of pants, and hood; a hardhat; a snood; wristlets; work gloves; leggings; metatarsal boots; safety glasses; earplugs; and a respirator. The first nine clearly fit within the interpretation of “clothes” elaborated above: they are both designed and used to cover the body and are commonly regarded as articles of dress. That proposition is obvious with respect to the jacket, pants, hood, and gloves. The hardhat is simply a type of hat. The snood is basically a hood that also covers the neck and upper shoulder area; on the ski slopes, one might call it a “balaclava.” The wristlets are essentially detached shirtsleeves. The leggings look much like traditional legwarmers, but with straps. And the metatarsal boots—more commonly known as “steel-toed” boots—are just a special kind of shoe. The remaining three items, by contrast, do not satisfy our standard. Whereas glasses and earplugs may have a covering function, we do not believe that they are commonly regarded as articles of dress. And a respirator obviously falls short on both grounds. The question is whether the time devoted to the putting on and off of these items must be deducted from the noncompensable time. If so, federal judges must be assigned the task of separating the minutes spent clothes-changing and washing from the minutes devoted to other activities during the period in question. Some Courts of Appeals, including the Court of Appeals in this case, have sought to avoid, or at least mitigate, this difficulty by invoking the doctrine de minimis non curat lex (the law does not take account of trifles). This, they hold, enables them to declare noncompensable a few minutes actually spent on something other than clothes-changing—to wit, donning and doffing non-clothes items. Although the roots of the de minimis doctrine stretch to ancient soil, its application in the present context began with Anderson. There, the Court declared that because “[s]plit-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act,” such “trifles” as “a few seconds or minutes of work beyond the scheduled working hours” may be “disregarded.” 328 U. S., at 692. “We [thus] do not . . . preclude the application of a de minimis rule.” Ibid. We doubt that the de minimis doctrine can properly be applied to the present case. To be sure, Anderson included “putting on aprons and overalls” and “removing shirts” as activities to which “it is appropriate to apply a de minimis doctrine.” Id., at 692–693. It said that, however, in the context of determining what preliminary activities had to be counted as part of the gross workweek under §207(a) of the Fair Labor Standards Act.[9] A de minimis doctrine does not fit comfortably within the statute at issue here, which, it can fairly be said, is all about trifles—the relatively insignificant periods of time in which employees wash up and put on various items of clothing needed for their jobs. Or to put it in the context of the present case, there is no more reason to disregard the minute or so necessary to put on glasses, earplugs, and respirators, than there is to regard the minute or so necessary to put on a snood. If the statute in question requires courts to select among trifles, de minimis non curat lex is not Latin for close enough for government work. That said, we nonetheless agree with the basic perception of the Courts of Appeals that it is most unlikelyCongress meant §203(o) to convert federal judges into time-study professionals. That is especially so since the conse-quence of dispensing with the intricate exercise of separating the minutes spent clothes-changing and washing from the minutes devoted to other activities is not to prevent compensation for the uncovered segments, but merely to leave the issue of compensation to the process of collective bargaining. We think it is possible to give the text of §203(o) a meaning that avoids such relatively inconsequential judicial involvement in “a morass of difficult, fact-specific determinations,” Sepulveda, 591 F. 3d, at 218. The forerunner of §203(o)—the Portal-to-Portal Act provision whose interpretation by the Labor Department prompted its enactment—focused narrowly on the activities involved: “activities which are preliminary to orpostliminary to [the employee’s] principal activity or activities.” §254(a)(2). Section 203(o), by contrast, is addressed not to certain “activities,” but to “time spent” on certain activities, viz., “changing clothes or washing.” Just as one can speak of “spending the day skiing” even when less-than-negligible portions of the day are spent having lunch or drinking hot toddies, so also one can speak of “time spent changing clothes and washing” when the vast preponderance of the period in question is devoted to those activities. To be sure, such an imprecise and colloquial usage will not ordinarily be attributed to a statutory text, but for the reasons we have discussed we think that appropriate here. The question for courts is whether the period at issue can, on the whole, be fairly characterized as “time spent in changing clothes or washing.” If an employee devotes the vast majority of the time in question to putting on and off equipment or other non-clothes items (perhaps a diver’s suit and tank) the entire period would not qualify as “time spent in changing clothes” under §203(o), even if some clothes items were donned and doffed as well. But if the vast majority of the time is spent in donning and doffing “clothes” as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted. In the present case, the District Court stated that “the time expended by each employee donning and doffing” safety glasses and earplugs “is minimal,” 2009 WL 3430222, *6, a conclusion with which the Seventh Circuit agreed, 678 F. 3d, at 593. As for respirators, the District Court stated that they “are kept and put on as needed at job locations,” 2009 WL 3430222, *2, which would render the time spent donning and doffing them part of an employee’s normal workday and thus beyond the scope of §203(o). The Seventh Circuit did not address respirators at all, and we are not inclined to disturb the District Court’s factual conclusion. * * * The judgment of the Court of Appeals is affirmed. It is so ordered.Notes 1 * joins this opinion except as to footnote 7. 2 Petitioners filed this action under , which establishes a cause of action that may be maintained “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” Pending resolution of the instant summary-judgment dispute, a Magistrate Judge set aside a motion to certify the suit as a collective action, see No. 2:07–CV–443 RM, 2009 WL 3430222, *1, n. 1 (ND Ind., Oct. 15, 2009), but petitioners assert that their ranks are about 800 strong. 3 The opinions below include descriptions of some of the items. See 678 F. 3d 590, 592 (CA7 2012); 2009 WL 3430222, *2, *6. And the opinion of the Court of Appeals provides a photograph of a male model wearing the jacket, pants, hardhat, snood, gloves, boots, and glasses. 678 F. 3d, at 593. 4 The District Court concluded that the collective-bargaining agreement provided that the activities at issue here were noncompensable, 2009 WL 3430222, *10, and the Seventh Circuit upheld that conclusion, 678 F. 3d, at 595. That issue was not among the questions on which we granted certiorari, and we take the import of the collective-bargaining agreement to be a given. 5 Petitioners also sought, , backpay for time spent traveling between the locker rooms where they don and doff at least some of the protective gear and their workstations. The District Court denied that portion of respondent’s motion for summary judgment, 2009 WL 3430222, *11, and the Seventh Circuit reversed, 678 F. 3d, at 595–598. That issue is not before this Court, so we express no opinion on it. 6 Although the Labor Department has construed §203() on a number of occasions, the Government has expressly declined to ask us to defer to those interpretations, which have vacillated considerably over the years. 7 Petitioners and their insist that equipment can never be clothes. While we do not believe that every wearable piece of equipment qualifies—for example, a wristwatch—our construction of “clothes” does not exclude all objects that could conceivably be characterized as equipment. 8 This Court has stated that “exemptions” in the Fair Labor Standards Act “are to be narrowly construed against the employers seeking to assert them.” v. , . We need not disapprove that statement to resolve the present case. The exemptions from the Act generally reside in §213, which is entitled “Exemptions” and classifies certain kinds of workers as uncovered by various provisions. Thus, in v. , 567 U. S. ___, ___–___, n. 21 (2012) (slip op., at 19–20, n. 21), we declared the narrow-construction principle inapplicable to a provision appearing in §203, entitled “Definitions.” 9 We note, moreover, that even in that context, the current regulations of the Labor Department apply a stricter standard than expressed. They specify that “[a]n employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.” 29 CFR §785.47.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SANDIFER et al. v. UNITED STATES STEEL CORP. certiorari to the united states court of appeals for the seventh circuit No. 12–417. Argued November 4, 2013—Decided January 27, 2014 Petitioner Sandifer and others filed a putative collective action under the Fair Labor Standards Act of 1938, seeking backpay for time spent donning and doffing pieces of protective gear that they assert respondent United States Steel Corporation requires workers to wear because of hazards at its steel plants. U. S. Steel contends that this donning-and-doffing time, which would otherwise be compensable under the Act, is noncompensable under a provision of its collective-bargaining agreement with petitioners’ union. That provision’s validity depends on 29 U. S. C. §203(o), which allows parties to collectively bargain over whether “time spent in changing clothes . . . at the beginning or end of each workday” must be compensated. The District Court granted U. S. Steel summary judgment in pertinent part, holding that petitioners’ donning and doffing constituted “changing clothes” under §203(o). It also assumed that any time spent donning and doffing items that were not “clothes” was “de minimis” and hence noncompensable. The Seventh Circuit affirmed. Held: The time petitioners spend donning and doffing their protective gear is not compensable by operation of §203(o). . (a) This Court initially construed compensability under the Fair Labor Standards Act expansively. See, e.g., Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680. The Act was amended in 1949, however, to provide that the compensability of time spent “changing clothes or washing at the beginning or end of each workday” is a subject appropriately committed to collective bargaining, §203(o). Whether petitioners’ donning and doffing qualifies as “changing clothes” depends on the meaning of that statutory phrase. . (b) The term “clothes,” which is otherwise undefined, is “interpreted as taking [its] ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42. In dictionaries from the era of §203(o)’s enactment, “clothes” denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress. Nothing in §203(o)’s text or context suggests anything other than this ordinary meaning. There is no basis for petitioners’ proposition that the unmodified term “clothes” somehow omits protective clothing. Section 203(o)’s exception applies only when the changing of clothes is “an integral and indispensable part of the principal activities for which covered workmen are employed,” Steiner v. Mitchell, 350 U.S. 247, 256, and thus otherwise compensable under the Act. See 29 U. S. C. §254(a). And protective gear is the only clothing that is integral and indispensable to the work of many occupations, such as butchers and longshoremen. Petitioners’ position is also incompatible with the historical context of §203(o)’s passage, contradicting contemporaneous Labor Department regulations and dictum in Steiner, see 350 U. S., at 248, 254–255. The interpretation adopted here leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices. The view of respondent and its amici that “clothes” encompasses the entire outfit that one puts on to be ready for work is also devoid of any textual foundation. . (c) While the normal meaning of “changing clothes” connotes substitution, “changing” also carried the meaning to “alter” at the time of §203(o)’s enactment. The broader statutory context makes plain that “time spent in changing clothes” includes time spent in altering dress. Whether one exchanges street clothes for work clothes or simply chooses to layer one over the other may be a matter of purely personal choice, and §203(o) should not be read to allow workers to opt into or out of its coverage at random or at will when another reading is textually permissible. . (d) Applying these principles here, it is evident that the donning and doffing in this case qualifies as “changing clothes” under §203(o). Of the 12 items at issue, only 3—safety glasses, earplugs, and a respirator—do not fit within the elaborated interpretation of “clothes.” Apparently concerned that federal judges would have to separate the minutes spent clothes-changing and washing from the minutes devoted to other activities during the relevant period, some Courts of Appeals have invoked the doctrine de minimis non curat lex (the law does not take account of trifles). But that doctrine does not fit comfortably within this statute, which is all about trifles. A more appropriate way to proceed is for courts to ask whether the period at issue can, on the whole, be fairly characterized as “time spent in changing clothes or washing.” If an employee devotes the vast majority of that time to putting on and off equipment or other non-clothes items, the entire period would not qualify as “time spent in changing clothes” under §203(o), even if some clothes items were also donned and doffed. But if the vast majority of the time is spent in donning and doffing “clothes” as defined here, the entire period qualifies, and the time spent putting on and off other items need not be subtracted. Here, the Seventh Circuit agreed with the District Court’s conclusion that the time spent donning and doffing safety glasses and earplugs was minimal. And this Court is disinclined to disturb the District Court’s additional factual finding, not addressed by the Seventh Circuit, that the respirators were donned and doffed as needed during the normal workday and thus fell beyond §203(o)’s scope. . 678 F.3d 590, affirmed. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ., joined, and in which Sotomayor, J., joined except as to footnote 7.

Petitioner Sandifer filed suit under the Fair Labor Standards Act (Act) against respondent, seeking backpay for time spent donning and doffing various pieces of protective gear, including flame-retardant jackets, hardhat, snood, gloves, boots, and a respirator. Petitioners asserted that respondent requires workers to wear all of the protective gear because of hazards regularly encountered in steel plants. The District Court granted summary judgment for respondent, holding that the time was noncompensable under 29 U.S. C. §203(o), which allows parties to decide, as part of a collective-bargaining agreement, that time spent in changing clothes at the beginning or end of each workday is noncompensable. The Court of Appeals affirmed. Held: The meaning of the phrase "changing clothes" as it appears in the Act is a subject appropriately committed to collective bargaining. . (a) The Act provides that the compensability of time spent changing clothes or "changing accessories, clothing, or workstations" includes time spent, inter alia, changing clothes and changing clothes. The Act does not define the key terms "work" and "workweek," but defines those terms in terms culminating in a statutory reading culminating in the statutory term culminating in an employer-employee relationship. Accordingly, the Act, in its terms, includes all the time spent on and off of specified protective gear at work. P.. (b) Petitioners argue that the word "clothes" is too indeterminate to be ascribed any general meaning, but that, whatever it includes, it necessarily excludes items designed and used to protect against workplace hazards. That position creates a distinction between clothing and articles of dress, and leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices. Although protective gear is the only clothing that is integral and indispensable to the work of factory workers, but other occupations, petitioners assert that when used with certain objects, the term "changing" connotes substitution. See Webster's Second 448 (defining it as meaning to make substitutionof, for, or among, often among things of the same kind), and this interpretation is more readily administrable, but it is even more devoid of a textual foundation than petitioners have offered. Moreover, even in the context of this case, the statute does not embrace the view that protective items of apparel are referred to as clothing, since the unmodified term encompasses the entire outfit that one puts on to be ready for work, and the entire period qualifies. Petitioners contend that, since some items are covered by street clothes, but not others, the protective items are simply accessories, tools, and so forth, and that, in order to show that they are covering work, they have to be carried over to the place where they are put on. Respondent and its amici also give the term a capacious construction, effectively echoing the Courts of Appeals above, and run the risk of reducing the Act to near nothingness by invoking the doctrine de minimis non curat lex (the law does not take account of trifles). The doctrine, which enables federal judges to declare noncomputes a few minutes actually spent on something other than clothes-changing, is not Latin for close enough for government work to resolve the present case.. 78 F. 3d 590, affirmed. MR. JUSTICE DOUGLAS concluded that: 1. In determining what time is compensable under §203 (o), the period at issue must be fairly characterized as (1) the portion of the workday that is devoted to clothing-changing or (2) the period spent in the changing of clothes or (3) the part spent in putting on and washing that is beyond the scope of the Act. This Court expresses no opinion on this issue, but does express a strong opinion on the issue of whether the collective bargaining agreement provides a photograph of a male model wearing the jacket, pants, and snood at issue. It is for this purpose, and this Court takes the import of the agreement to be a given. Cf. Steiner v. Mitchell, 350 U. S. 247 (1956). See, e.g., id., at 254. Pp. 690. 2. Although the Act requires courts to select among trifles, the broader statutory context makes it plain that, despite the usual meaning of clothes, the word means nothing other than the ordinary meaning of that word. There is no merit to petitioners' contention that equipment can never be clothes. While clothing is integral to job performance, it does not exclude all objects that could conceivably be characterized as equipment. Even with respect to items that can be regarded as integral to work performance, the definition of the term in question is considerably more contained, since many accessories are not designed or used to cover the body, nor are

2013_12-682

https://www.oyez.org/cases/2013/12-682

, in which The Chief Justice and Justice Alito join. The Court in this case must determine whether an amendment to the Constitution of the State of Michigan, approved and enacted by its voters, is invalid under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. In 2003 the Court reviewed the constitutionality of two admissions systems at the University of Michigan, one for its undergraduate class and one for its law school. The undergraduate admissions plan was addressed in Gratz v. Bollinger, 539 U. S. 244 . The law school admission plan was addressed in Grutter v. Bollinger, 539 U. S. 306 . Each admissions process permitted the explicit consideration of an applicant’s race. In Gratz, the Court invalidated the undergraduate plan as a violation of the Equal Protection Clause. 539 U. S., at 270. In Grutter, the Court found no constitutional flaw in the law school admission plan’s more limited use of race-based preferences. 539 U. S., at 343. In response to the Court’s decision in Gratz, the university revised its undergraduate admissions process, but the revision still allowed limited use of race-based preferences. After a statewide debate on the question of racial preferences in the context of governmental decisionmaking, the voters, in 2006, adopted an amendment to the State Constitution prohibiting state and other governmental entities in Michigan from granting certain preferences, including race-based preferences, in a wide range of actions and decisions. Under the terms of the amendment, race-based preferences cannot be part of the admissions process for state universities. That particular prohibition is central to the instant case. The ballot proposal was called Proposal 2 and, after it passed by a margin of 58 percent to 42 percent, the resulting enactment became Article I, §26, of the Michigan Constitution. As noted, the amendment is in broad terms. Section 26 states, in relevant part, as follows: “(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. “(2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. “(3) For the purposes of this section ‘state’ includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.” Section 26 was challenged in two cases. Among the plaintiffs in the suits were the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN); students; faculty; and prospective applicants to Michigan public universities. The named defendants included then-Governor Jennifer Granholm, the Board of Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University. The Michigan Attorney General was granted leave to intervene as a defendant. The United States District Court for the Eastern District of Michigan consolidated the cases. In 2008, the District Court granted summary judgment to Michigan, thus upholding Proposal 2. BAMN v. Regents of Univ. of Mich., 539 F. Supp. 2d 924. The District Court denied a motion to reconsider the grant of summary judgment. 592 F. Supp. 2d 948. A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment. 652 F. 3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633–646. The panel majority held that Proposal 2 had violated the principles elaborated by this Court in Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982) , and in the cases that Seattle relied upon. The Court of Appeals, sitting en banc, agreed with the panel decision. 701 F. 3d 466 (CA6 2012). The majority opinion determined that Seattle “mirrors the [case] before us.” Id., at 475. Seven judges dissented in a number of opinions. The Court granted certiorari. 568 U. S. ___ (2013). Before the Court addresses the question presented, it is important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The consideration of race in admissions presents complex questions, in part addressed last Term in Fisher v. University of Texas at Austin, 570 U. S. ––– (2013). In Fisher, the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions. This Court has noted that some States have decided to prohibit race-conscious admissions policies. In Grutter, the Court noted: “Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.” 539 U. S., at 342 (citing United States v. Lopez, 514 U. S. 549, 581 (1995) (Kennedy, J., concurring) (“[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear”)). In this way, Grutter acknowledged the significance of a dialogue regarding this contested and complex policy question among and within States. There was recognition that our federal structure “permits ‘ innovation and experimentation’ ” and “enables greater citizen ‘ involvement in democratic processes.’ ” Bond v. United States, 564 U. S. –––, ––– (2011) (slip op., at 9) (quoting Gregory v. Ashcroft, 501 U. S. 452, 458 (1991) ). While this case arises in Michigan, the decision by the State’s voters reflects in part the national dialogue regarding the wisdom and practicality of race-conscious admissions policies in higher education. See, e.g., Coalition for Economic Equity v. Wilson, 122 F. 3d 692 (CA9 1997). In Michigan, the State Constitution invests independent boards of trustees with plenary authority over public universities, including admissions policies. Mich. Const., Art. VIII, §5; see also Federated Publications, Inc. v. Board of Trustees of Mich. State Univ., 460 Mich. 75, 86–87, 594 N. W. 2d 491, 497 (1999). Although the members of the boards are elected, some evidence in the record suggests they delegated authority over admissions policy to the faculty. But whether the boards or the faculty set the specific policy, Michigan’s public universities did consider race as a factor in admissions decisions before 2006. In holding §26 invalid in the context of student admissions at state universities, the Court of Appeals relied in primary part on Seattle, supra, which it deemed to control the case. But that determination extends Seattle’s holding in a case presenting quite different issues to reach a conclusion that is mistaken here. Before explaining this further, it is necessary to consider the relevant cases that preceded Seattle and the background against which Seattle itself arose. Though it has not been prominent in the arguments of the parties, this Court’s decision in Reitman v. Mulkey, 387 U. S. 369 (1967) , is a proper beginning point for discussing the controlling decisions. In Mulkey, voters amended the California Constitution to prohibit any state legislative interference with an owner’s prerogative to decline to sell or rent residential property on any basis. Two different cases gave rise to Mulkey. In one a couple could not rent an apartment, and in the other a couple were evicted from their apartment. Those adverse actions were on account of race. In both cases the complaining parties were barred, on account of race, from invoking the protection of California’s statutes; and, as a result, they were unable to lease residential property. This Court concluded that the state constitutional provision was a denial of equal protection. The Court agreed with the California Supreme Court that the amendment operated to insinuate the State into the decision to discriminate by encouraging that practice. The Court noted the “immediate design and intent” of the amendment was to “establis[h] a purported constitutional right to privately discriminate.” Id., at 374 (internal quotation marks omitted and emphasis deleted). The Court agreed that the amendment “expressly authorized and constitutionalized the private right to discriminate.” Id., at 376. The effect of the state constitutional amendment was to “significantly encourage and involve the State in private racial discriminations.” Id., at 381. In a dissent joined by three other Justices, Justice Harlan disagreed with the majority’s holding. Id., at 387. The dissent reasoned that California, by the action of its voters, simply wanted the State to remain neutral in this area, so that the State was not a party to discrimination. Id., at 389. That dissenting voice did not prevail against the majority’s conclusion that the state action in question encouraged discrimination, causing real and specific injury. The next precedent of relevance, Hunter v. Erickson, 393 U. S. 385 (1969) , is central to the arguments the respondents make in the instant case. In Hunter, the Court for the first time elaborated what the Court of Appeals here styled the “political process” doctrine. There, the Akron City Council found that the citizens of Akron consisted of “ ‘people of different race[s], . . . many of whom live in circumscribed and segregated areas, under sub-standard unhealthful, unsafe, unsanitary and overcrowded conditions, because of discrimination in the sale, lease, rental and financing of housing.’ ” Id., at 391. To address the problem, Akron enacted a fair housing ordinance to prohibit that sort of discrimination. In response, voters amended the city charter to overturn the ordinance and to require that any additional antidiscrimination housing ordinance be approved by referendum. But most other ordinances “regulating the real property market” were not subject to those threshold requirements. Id., at 390. The plaintiff, a black woman in Akron, Ohio, alleged that her real estate agent could not show her certain residences because the owners had specified they would not sell to black persons. Central to the Court’s reasoning in Hunter was that the charter amendment was enacted in circumstances where widespread racial discrimination in the sale and rental of housing led to segregated housing, forcing many to live in “ ‘unhealthful, unsafe, unsanitary and overcrowded conditions.’ ” Id., at 391. The Court stated: “It is against this background that the referendum required by [the charter amendment] must be assessed.” Ibid. Akron attempted to characterize the charter amendment “simply as a public decision to move slowly in the delicate area of race relations” and as a means “to allow the people of Akron to participate” in the decision. Id., at 392. The Court rejected Akron’s flawed “justifications for its discrimination,”justifications that by their own terms had the effect of acknowledging the targeted nature of the charter amendment. Ibid. The Court noted, furthermore, that the charter amendment was unnecessary as a general means of public control over the city council; for the people of Akron already were empowered to overturn ordinances by referendum. Id., at 390, n. 6. The Court found that the city charter amendment, by singling out antidiscrimination ordinances, “places special burden on racial minorities within the governmental process,” thus becoming as impermissible as any other government action taken with the invidious intent to injure a racial minority. Id., at 391. Justice Harlan filed a concurrence. He argued the city charter amendment “has the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest.” Id., at 395. But without regard to the sentence just quoted, Hunter rests on the unremarkable principle that the State may not alter the procedures of government to target racial minorities. The facts in Hunter established that invidious discrimination would be the necessary result of the procedural restructuring. Thus, in Mulkey and Hunter, there was a demonstrated injury on the basis of race that, by reasons of state encouragement or participation, became more aggravated. Seattle is the third case of principal relevance here. There, the school board adopted a mandatory busing program to alleviate racial isolation of minority students in local schools. Voters who opposed the school board’s busing plan passed a state initiative that barred busing to desegregate. The Court first determined that, although “white as well as Negro children benefit from” diversity, the school board’s plan “inures primarily to the benefit of the minority.” 458 U. S., at 472. The Court next found that “the practical effect” of the state initiative was to “remov[e] the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests” because advocates of busing “now must seek relief from the state legislature, or from the statewide electorate.” Id., at 474. The Court therefore found that the initiative had “explicitly us[ed] the racial nature of a decision to determine the decisionmaking process.” Id., at 470 (emphasis deleted). Seattle is best understood as a case in which the state action in question (the bar on busing enacted by the State’s voters) had the serious risk, if not purpose, of causing specific injuries on account of race, just as had been the case in Mulkey and Hunter. Although there had been no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies that “permitted white students to transfer out of black schools while restricting the transfer of black students into white schools.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701 –808 (2007) (Breyer, J., dissenting). In 1977, the National Association for the Advancement of Colored People (NAACP) filed a complaint with the Office for Civil Rights, a federal agency. The NAACP alleged that the school board had maintained a system of de jure segregation. Specifically, the complaint alleged “that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts.” Id., at 810. As part of a settlement with the Office for Civil Rights, the school board implemented the “Seattle Plan,” which used busing and mandatory reassignments between elementary schools to reduce racial imbalance and which was the subject of the state initiative at issue in Seattle. See 551 U. S., at 807–812. As this Court held in Parents Involved, the school board’s purported remedial action would not be permissible today absent a showing of de jure segregation. Id., at 720–721. That holding prompted Justice Breyer to observe in dissent, as noted above, that one permissible reading of the record was that the school board had maintained policies to perpetuate racial segregation in the schools. In all events we must understand Seattle as Seattle understood itself, as a case in which neither the State nor the United States “challenge[d] the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation.” 458 U. S. at 472, n. 15. In other words the legitimacy and constitutionality of the remedy in question (busing for desegregation) was assumed, and Seattle must be understood on that basis. Ibid. Seattle involved a state initiative that “was carefully tailored to interfere only with desegregative busing.” Id., at 471. The Seattle Court, accepting the validity of the school board’s busing remedy as a predicate to its analysis of the constitutional question, found that the State’s disapproval of the school board’s busing remedy was an aggravation of the very racial injury in which the State itself was complicit. The broad language used in Seattle, however, went well beyond the analysis needed to resolve the case. The Court there seized upon the statement in Justice Harlan’s concurrence in Hunter that the procedural change in that case had “the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest.” 385 U. S., at 395. That language, taken in the context of the facts in Hunter, is best read simply to describe the necessity for finding an equal protection violation where specific injuries from hostile discrimination were at issue. The Seattle Court, however, used the language from the Hunter concurrence to establish a new and far-reaching rationale. Seattle stated that where a government policy “inures primarily to the benefit of the minority” and “minorities . . . con-sider” the policy to be “ ‘in their interest,’ ” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” must be reviewed under strict scrutiny. 458 U. S., at 472, 474. In essence, according to the broad reading of Seattle, any state action with a “racial focus” that makes it “more difficult for certain racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. It is this reading of Seattle that the Court of Appeals found to be controlling here. And that reading must be rejected. The broad rationale that the Court of Appeals adopted goes beyond the necessary holding and the meaning of the precedents said to support it; and in the instant case neither the formulation of the general rule just set forth nor the precedents cited to authenticate it suffice to invalidate Proposal 2. The expansive reading of Seattle has no principled limitation and raises serious questions of compatibility with the Court’s settled equal protection jurisprudence. To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitu-tional concerns. That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling. The rule that the Court of Appeals elaborated and respondents seek to establish here would contradict central equal protection principles. In cautioning against “impermissible racial stereotypes,” this Court has rejected the assumption that “members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.” Shaw v. Reno, 509 U. S. 630, 647 (1993) ; see also Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 636 (1990) (Kennedy, J., dissenting) (rejecting the “demeaning notion that members of . . . defined racial groups ascribe to certain ‘minority views’ that must be different from those of other citizens”). It cannot be entertained as a serious proposition that all individuals of the same race think alike. Yet that proposition would be a necessary beginning point were the Seattle formulation to control, as the Court of Appeals held it did in this case. And if it were deemed necessary to probe how some races define their own interest in political matters, still another beginning point would be to define individuals according to race. But in a society in which those lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own. Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend. Cf. Ho v. San Francisco Unified School Dist., 147 F. 3d 854, 858 (CA9 1998) (school district delineating 13 racial categories for purposes of racial balancing). Were courts to embark upon this venture not only would it be undertaken with no clear legal standards or accepted sources to guide judicial decision but also it would result in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms. Even assuming these initial steps could be taken in a manner consistent with a sound analytic and judicial framework, the court would next be required to determine the policy realms in which certain groups—groups defined by race—have a political interest. That undertaking, again without guidance from any accepted legal standards, would risk, in turn, the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage. Thus could racial antagonisms and conflict tend to arise in the context of judicial decisions as courts undertook to announce what particular issues of public policy should be classified as advantageous to some group defined by race. This risk is inherent in adopting the Seattle formulation. There would be no apparent limiting standards defining what public policies should be included in what Seattle called policies that “inur[e] primarily to the benefit of the minority” and that “minorities . . . consider” to be “ ‘in their interest.’ ” 458 U. S., at 472, 474. Those who seek to represent the interests of particular racial groups could attempt to advance those aims by demanding an equal protection ruling that any number of matters be foreclosed from voter review or participation. In a nation in which governmental policies are wide ranging, those who seek to limit voter participation might be tempted, were this Court to adopt the Seattle formulation, to urge that a group they choose to define by race or racial stereotypes are advantaged or disadvantaged by any number of laws or decisions. Tax policy, housing subsidies, wage regulations, and even the naming of public schools, highways, and monuments are just a few examples of what could become a list of subjects that some organizations could insist should be beyond the power of voters to decide, or beyond the power of a legislature to decide when enacting limits on the power of local authorities or other governmental entities to address certain subjects. Racial division would be validated, not discouraged, were the Seattle formulation, and the reasoning of the Court of Appeals in this case, to remain in force. Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that race-based preferences should be adopted. The constitutional validity of some of those choices regarding racial preferences is not at issue here. The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow. In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of the courts. One response to these concerns may be that objections to the larger consequences of the Seattle formulation need not be confronted in this case, for here race was an undoubted subject of the ballot issue. But a number of problems raised by Seattle, such as racial definitions, still apply. And this principal flaw in the ruling of the Court of Appeals does remain: Here there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools. Here there is no precedent for extending these cases to restrict the right of Michigan voters to determine that race-based preferences granted by Michigan governmental entities should be ended. It should also be noted that the judgment of the Court of Appeals in this case of necessity calls into question other long-settled rulings on similar state policies. The California Supreme Court has held that a California constitutional amendment prohibiting racial preferences in public contracting does not violate the rule set down by Seattle. Coral Constr., Inc. v. City and County of San Francisco, 50 Cal. 4th 315, 235 P. 3d 947 (2010). The Court of Appeals for the Ninth Circuit has held that the same amendment, which also barred racial preferences in public education, does not violate the Equal Protection Clause. Wilson, 122 F. 3d 692 (1997). If the Court were to affirm the essential rationale of the Court of Appeals in the instant case, those holdings would be invalidated, or at least would be put in serious question. The Court, by affirming the judgment now before it, in essence would announce a finding that the past 15 years of state public debate on this issue have been improper. And were the argument made that Coral might still stand because it involved racial preferences in public contracting while this case concerns racial preferences in university admissions, the implication would be that the constitutionality of laws forbidding racial preferences depends on the policy interest at stake, the concern that, as already explained, the voters deem it wise to avoid because of its divisive potential. The instant case presents the question involved in Coral and Wilson but not involved in Mulkey, Hunter, and Seattle. That question is not how to address or prevent injury caused on account of race but whether voters may determine whether a policy of race-based preferences should be continued. By approving Proposal 2 and thereby adding §26 to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power. In the federal system States “respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times.” Bond, 564 U. S., at ––– (slip op., at 9). Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues. The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. The mandate for segregated schools, Brown v. Board of Education, 347 U. S. 483 (1954) ; a wrongful invasion of the home, Silverman v. United States, 365 U. S. 505 (1961) ; or punishing a protester whose views offend others, Texas v. Johnson, 491 U. S. 397 (1989) ; and scores of other examples teach that individual liberty has constitutional protection, and that liberty’s full extent and meaning may remain yet to be discovered and affirmed. Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scru-tiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process. The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine. These precepts are not inconsistent with the well-established principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts. Cf. Johnson v. California, 543 U. S. 499 –512 (2005) (“[S]earching judicial review . . . is necessary to guard against invidious discrimination”); Edmonson v. Leesville Concrete Co., 500 U. S. 614, 619 (1991) (“Racial discrimination” is “invidious in all contexts”). As already noted, those were the circumstances that the Court found present in Mulkey, Hunter, and Seattle. But those circumstances are not present here. For reasons already discussed, Mulkey, Hunter, and Seattle are not precedents that stand for the conclusion that Michigan’s voters must be disempowered from acting. Those cases were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race. What is at stake here is not whether injury will be inflicted but whether government can be instructed not to follow a course that entails, first, the definition of racial categories and, second, the grant of favored status to persons in some racial categories and not others. The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it. Whether those adverse results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and reflection, that programs designed to increase diversity—consistent with the Constitution—are a necessary part of progress to transcend the stigma of past racism. This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters. See Sailors v. Board of Ed. of County of Kent, 387 U. S. 105, 109 (1967) (“Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs”). Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate. The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered. Justice Kagan took no part in the consideration or decision of this case.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SCHUETTE, ATTORNEY GENERAL OF MICHIGAN v. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRATION RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN) et al. certiorari to the united states court of appeals for the sixth circuit No. 12–682. Argued October 15, 2013—Decided April 22, 2014 After this Court decided that the University of Michigan’s undergraduate admissions plan’s use of race-based preferences violated the Equal Protection Clause, Gratz v. Bollinger, 539 U.S. 244, 270, but that the law school admission plan’s more limited use did not, Grutter v. Bollinger, 539 U.S. 306, 343, Michigan voters adopted Proposal 2, now Art. I, §26, of the State Constitution, which, as relevant here, prohibits the use of race-based preferences as part of the admissions process for state universities. In consolidated challenges, the District Court granted summary judgment to Michigan, thus upholding Proposal 2, but the Sixth Circuit reversed, concluding that the proposal violated the principles of Washington v. Seattle School Dist. No. 1, 458 U.S. 457. Held: The judgment is reversed. 701 F.3d 466, reversed. Justice Kennedy, joined by The Chief Justice and Justice Alito, concluded that there is no authority in the Federal Constitution or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions. . (a) This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. Here, the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged. Rather, the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of such racial preferences. Where States have prohibited race-conscious admissions policies, universities have responded by experimenting “with a wide variety of alternative approaches.” Grutter, supra, at 342. The decision by Michigan voters reflects the ongoing national dialogue about such practices. . (b) The Sixth Circuit’s determination that Seattle controlled here extends Seattle’s holding in a case presenting quite different issues to reach a mistaken conclusion. . (1) It is necessary to consider first the relevant cases preceding Seattle and the background against which Seattle arose. Both Reitman v. Mulkey, 387 U.S. 369, and Hunter v. Erickson, 393 U.S. 385, involved demonstrated injuries on the basis of race that, by reasons of state encouragement or participation, became more aggravated. In Mulkey, a voter-enacted amendment to the California Constitution prohibiting state legislative interference with an owner’s prerogative to decline to sell or rent residential property on any basis barred the challenging parties, on account of race, from invoking the protection of California’s statutes, thus preventing them from leasing residential property. In Hunter, voters overturned an Akron ordinance that was enacted to address widespread racial discrimination in housing sales and rentals had forced many to live in “ ‘unhealthful, unsafe, unsanitary and overcrowded’ ” segregated housing, 393 U. S., at 391. In Seattle, after the school board adopted a mandatory busing program to alleviate racial isolation of minority students in local schools, voters passed a state initiative that barred busing to desegregate. This Court found that the state initiative had the “practical effect” of removing “the authority to address a racial problem . . . from the existing decisionmaking body, in such a way as to burden minority interests” of busing advocates who must now “seek relief from the state legislature, or from the statewide electorate.” 458 U. S., at 474. . (2) Seattle is best understood as a case in which the state action had the serious risk, if not purpose, of causing specific injuries on account of race as had been the case in Mulkey and Hunter. While there had been no judicial finding of de jure segregation with respect to Seattle’s school district, a finding that would be required today, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 720–721, Seattle must be understood as Seattle understood itself, as a case in which neither the State nor the United States “challenge[d] the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation.” 458 U.S. at 472, n. 15. Seattle’s broad language, however, went well beyond the analysis needed to resolve the case. Seizing upon the statement in Justice Harlan’s concurrence in Hunter that the procedural change in that case had “the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest,” 385 U. S., at 395, the Seattle Court established a new and far-reaching rationale: Where a government policy “inures primarily to the benefit of the minority” and “minorities . . . consider” the policy to be “ ‘in their interest,’ ” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” is subject to strict scrutiny. 458 U. S., at 472, 474. . (3) To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious equal protection concerns. In cautioning against “impermissible racial stereotypes,” this Court has rejected the assumption that all individuals of the same race think alike, see Shaw v. Reno, 509 U.S. 630, 647, but that proposition would be a necessary beginning point were the Seattle formulation to control. And if it were deemed necessary to probe how some races define their own interest in political matters, still another beginning point would be to define individuals according to race. Such a venture would be undertaken with no clear legal standards or accepted sources to guide judicial decision. It would also result in, or impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms. Assuming these steps could be taken, the court would next be required to determine the policy realms in which groups defined by race had a political interest. That undertaking, again without guidance from accepted legal standards, would risk the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage. Adoption of the Seattle formulation could affect any number of laws or decisions, involving, e.g., tax policy or housing subsidies. And racial division would be validated, not discouraged. It can be argued that objections to the larger consequences of the Seattle formulation need not be confronted here, for race was an undoubted subject of the ballot issue. But other problems raised by Seattle, such as racial definitions, still apply. And the principal flaw in the Sixth Circuit’s decision remains: Here there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools, and there is no precedent for extending these cases to restrict the right of Michigan voters to determine that race-based preferences granted by state entities should be ended. The Sixth Circuit’s judgment also calls into question other States’ long-settled rulings on policies similar to Michigan’s. Unlike the injuries in Mulkey, Hunter, and Seattle, the question here is not how to address or prevent injury caused on account of race but whether voters may determine whether a policy of race-based preferences should be continued. By approving Proposal 2 and thereby adding §26 to their State Constitution, Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns about a policy of granting race-based preferences. The mandate for segregated schools, Brown v. Board of Education, 347 U.S. 483, and scores of other examples teach that individual liberty has constitutional protection. But this Nation’s constitutional system also embraces the right of citizens to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process, as Michigan voters have done here. These precepts are not inconsistent with the well-established principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts. Such circumstances were present in Mulkey, Hunter, and Seattle, but they are not present here. . Justice Scalia, joined by Justice Thomas, agreed that §26 rightly stands, though not because it passes muster under the political-process doctrine. It likely does not, but the cases establishing that doctrine should be overruled. They are patently atextual, unadministrable, and contrary to this Court’s traditional equal protection jurisprudence. The question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. It plainly does not. . (a) The Court of Appeals for the Sixth Circuit held §26 unconstitutional under the so-called political-process doctrine, derived from Washington v. Seattle School Dist. No. 1, 458 U.S. 457, and Hunter v. Erickson, 393 U.S. 385. In those cases, one level of government exercised borrowed authority over an apparently “racial issue” until a higher level of government called the loan. This Court deemed each revocation an equal-protection violation, without regard to whether there was evidence of an invidious purpose to discriminate. The relentless, radical logic of Hunter and Seattle would point to a similar conclusion here, as in so many other cases. . (b) The problems with the political-process doctrine begin with its triggering prong, which assigns to a court the task of determining whether a law that reallocates policymaking authority concerns a “racial issue,” Seattle, 458 U. S., at 473, i.e., whether adopting one position on the question would “at bottom inur[e] primarily to the benefit of the minority, and is designed for that purpose,” id., at 472. Such freeform judicial musing into ethnic and racial “interests” involves judges in the dirty business of dividing the Nation “into racial blocs,” Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 603, 610 (O’Connor, J., dissenting), and promotes racial stereotyping, see Shaw v. Reno, 509 U.S. 630, 647. More fundamentally, the analysis misreads the Equal Protection Clause to protect particular groups, a construction that has been repudiated in a “long line of cases understanding equal protection as a personal right.” Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 224, 230. . (c) The second part of the Hunter-Seattle analysis directs a court to determine whether the challenged act “place[s] effective decisionmaking authority over [the] racial issue at a different level of government,” Seattle, supra, at 474; but, in another line of cases, the Court has emphasized the near-limitless sovereignty of each State to design its governing structure as it sees fit, see, e.g., Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71. Taken to the limits of its logic, Hunter-Seattle is the gaping exception that nearly swallows the rule of structural state sovereignty, which would seem to permit a State to give certain powers to cities, later assign the same powers to counties, and even reclaim them for itself. . (d) Hunter and Seattle also endorse a version of the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact. That equal-protection theory has been squarely and soundly rejected by an “unwavering line of cases” holding “that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent,” Hernandez v. New York, 500 U.S. 352, 372–373 (O’Connor, J., concurring in judgment), and that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact,” Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264–265. Respondents cannot prove that the action here reflects a racially discriminatory purpose, for any law expressly requiring state actors to afford all persons equal protection of the laws does not—cannot—deny “to any person . . . equal protection of the laws,” U. S. Const., Amdt. 14, §1. . Justice Breyer agreed that the amendment is consistent with the Equal Protection Clause, but for different reasons. First, this case addresses the amendment only as it applies to, and forbids, race-conscious admissions programs that consider race solely in order to obtain the educational benefits of a diverse student body. Second, the Constitution permits, but does not require, the use of the kind of race-conscious programs now barred by the Michigan Constitution. It foresees the ballot box, not the courts, as the normal instrument for resolving debates about the merits of these programs. Third, Hunter v. Erickson, 393 U.S. 385, and Washington v. Seattle School Dist. No. 1, 458 U.S. 457, which reflect the important principle that an individual’s ability to participate meaningfully in the political process should be independent of his race, do not apply here. Those cases involved a restructuring of the political process that changed the political level at which policies were enacted, while this case involves an amendment that took decisionmaking authority away from unelected actors and placed it in the hands of the voters. Hence, this case does not involve a diminution of the minority’s ability to participate in the political process. Extending the holding of Hunter and Seattle to situations where decisionmaking authority is moved from an administrative body to a political one would also create significant difficulties, given the nature of the administrative process. Furthermore, the principle underlying Hunter and Seattle runs up against a competing principle favoring decisionmaking through the democratic process. . Kennedy, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Alito, J., joined. Roberts, C. J., filed a concurring opinion. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Breyer, J., filed an opinion concurring in the judgment. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined. Kagan, J., took no part in the consideration or decision of the case.

After a statewide debate on the question of racial preferences in the context of governmental decisionmaking, Michigan voters, in 2006, adopted an amendment to the State Constitution prohibiting state and other governmental entities from granting certain preferences, including race-based preferences, in a wide range of actions and decisions. The amendment also prohibits the State from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. As part of a settlement with the Office for Civil Rights, the school board amended the school charter to overturn the constitutionality of an earlier fair housing ordinance and to require that any additional antidiscrimination housing ordinance be approved by referendum. The amendment was challenged in two Michigan state court actions. Among the plaintiffs in the suits was the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), students, faculty, and prospective applicants to Michigan public universities. The named defendants included then-governor of Michigan, the State Attorney General, and the Board of Governors of Michigan State University. The Michigan Attorney General was granted leave to intervene as a defendant. The District Court granted summary judgment to Michigan, thus upholding Proposal 2. The Court of Appeals reversed the grant of summary judgment, holding that the amendment violated the Equal Protection Clause of the Fourteenth Amendment. Held: The constitutional amendment is invalid under the equal protection Clause. . (a) While this case arises in Michigan, it reflects in part the national dialogue regarding the wisdom and practicality of race-conscious admissions policies in higher education. Reitman v. Mulkey, 387 U.S. 369 (1967), and Hunter v. Erickson, 393 U. S. 385 (1969), distinguished. Although the members of the Michigan boards of trustees are elected, some evidence in the record suggests they delegated authority over admissions policy to the faculty. Whether the boards or the faculty set the specific policy, Michigan's public universities did consider race as a factor in admissions decisions before the amendment was enacted. Seattle v. Seattle School District No. 1,; Mulkey v. Hunter, 539 U. s. 306 (CA9), followed. Moreover, the broad language used in Seattle went well beyond the analysis needed to resolve the case. There would be no apparent limiting standards defining what public policies should be included in what Seattle called policies that "inur[e] primarily to the benefit of the minority" and that the majority consider to be "in their interest." Whether adverse results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and reflection, that programs designed to increase diversity are a necessary part of progress to transcend the stigma of past racism. This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it, and there is no authority in the Constitution of the United States or in this Court's precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters. See Sailors v. Board of Ed.Cl. Ed. Cl. Ed., 472, 474. Racial antagonisms and conflict tend to arise from judicial decisions as courts undertake to announce what particular issues of public policy should be classified as advantageous to some group defined by race. Here, there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools. To the extent Seattle is read to require the Court to determine and declare which political policies serve the interests of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitu-tional concerns. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine. Such risk is inherent in adopting the Seattle formulation. In adopting the formulation, the electorate was not merely disempowered from acting, but was instead instructed to bypass public officials who were deemed not responsive to the concerns of a majority of voters with respect to a policy of granting race- based preferences that raises difficult and delicate issues. Thus, there is a risk that government can be instructed not to follow a course that entails, first, the definition of racial categories and, second, the granting of favored status to persons in some racial categories, and not others. Pp.

2013_12-930

https://www.oyez.org/cases/2013/12-930

, in which Justice Kennedy and Justice Ginsburg join. Under the Immigration and Nationality Act, 8 U. S. C. §1101 et seq., citizens and lawful permanent residents (LPRs) of the United States may petition for certain fam-ily members—spouses, siblings, and children of various ages—to obtain immigrant visas. Such a sponsored individual is known as the petition’s principal beneficiary. In turn, any principal beneficiary’s minor child—meaning an unmarried child under the age of 21—qualifies as a derivative beneficiary, “entitled to the same [immigration] status” and “order of consideration” as his parent. §1153(d). Accordingly, when a visa becomes available to the petition’s principal beneficiary, one also becomes available to her minor child. But what happens if, sometime after the relevant petition was filed, a minor child (whether a principal or a derivative beneficiary) has turned 21—or, in immigration lingo, has “aged out”? The immigration process may take years or even decades to complete, due in part to bureaucratic delays associated with reviewing immigration documents and in (still greater) part to long queues for the limited number of visas available each year. So someone who was a youngster at the start of the process may be an adult at the end, and no longer qualify for an immigration status given to minors. The Child Status Protection Act (CSPA), 116Stat. 927, ensures that the time Government officials have spent processing immigration papers will not count against the beneficiary in assessing his status. See 8 U. S. C. §1153(h)(1). But even with that provision, the beneficiary may age out solely because of the time he spent waiting in line for a visa to become available. The question presented in this case is whether the CSPA grants a remedy to all aliens who have thus outpaced the immigration process—that is, all aliens who counted as child beneficiaries when a sponsoring petition was filed, but no longer do so (even after excluding administrative delays) by the time they reach the front of the visa queue. The Board of Immigration Appeals (BIA or Board) said no. It interpreted the CSPA as providing relief to only a subset of that group—specifically, those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent. We now uphold the Board’s determination as a permissible construction of the statute. I A An alien needs an immigrant visa to enter and permanently reside in the United States. See §1181(a).[1] To obtain that highly sought-after document, the alien must fall within one of a limited number of immigration cate-gories. See §§1151(a)–(b). The most favored is for the “immediate relatives” of U. S. citizens—their parents, spouses, and unmarried children under the age of 21.See §§1151(b)(2)(A)(i), 1101(b)(1). Five other categories—crucial to this case, and often denominated “preference” categories—are for “family-sponsored immigrants,” who include more distant or independent relatives of U. S. citizens, and certain close relatives of LPRs.[2] Specifically, those family preference categories are: F1: the unmarried, adult (21 or over) sons and daughters of U. S. citizens; F2A: the spouses and unmarried, minor (under 21) children of LPRs; F2B: the unmarried, adult (21 or over) sons and daughters of LPRs; F3: the married sons and daughters of U. S. citizens; F4: the brothers and sisters of U. S. citizens. §§1151(a)(1), 1153(a)(1)–(4).[3] (A word to the wise: Dog-ear this page for easy reference, because these categories crop up regularly throughout this opinion.) The road to obtaining any family-based immigrant visa begins when a sponsoring U. S. citizen or LPR files a petition on behalf of a foreign relative, termed the principal beneficiary. See §§1154(a)(1)(A)(i), (a)(1)(B)(i)(I), (b); 8 CFR §204.1(a)(1) (2014). The sponsor (otherwise knownas the petitioner—we use the words interchangeably) must provide U. S. Citizenship and Immigration Services (USCIS) with evidence showing, among other things, that she has the necessary familial relationship with thebeneficiary, see §§204.2(a)(2), (d)(2), (g)(2), and that she has not committed any conduct disqualifying her from sponsoring an alien for a visa, see, e.g., 8 U. S. C. §1154(a)(1)(B)(i)(II) (barring an LPR from submitting a petition if she has committed certain offenses against minors). USCIS thereafter reviews the petition, and approves it if found to meet all requirements. See §1154(b). For a family preference beneficiary, that approval results not in getting a visa then and there, but only in getting a place in line. (The case is different for “immediate relatives” of U. S. citizens, who can apply for and receive a visa as soon as a sponsoring petition is approved.) The law caps the number of visas issued each year in the five family preference categories, see §§1151(c)(1), 1152, 1153(a)(1)–(4), and demand regularly exceeds the supply. As a consequence, the principal beneficiary of an approved petition is placed in a queue with others in her category (F1, F2A, or what have you) in order of “priority date”—that is, the date a petition was filed with USCIS. See §1153(e)(1); 8 CFR §204.1(b); 22 CFR 42.53(a) (2013). Every month, the Department of State sets a cut-off date for each family preference category, indicating that visas (sometimes referred to by “visanumbers”) are available for beneficiaries with priority dates earlier than the cut-off. See 8 CFR §245.1(g)(1); 22 CFR §42.51(b). The system is thus first-come, first-served within each preference category, with visas becoming available in order of priority date. Such a date may benefit not only the principal beneficiary of a family preference petition, but also her spouse and minor children. Those persons, labeled the petition’s “derivative beneficiar[ies],” are “entitled to the same status, and the same order of consideration” as the principal. 8 U. S. C. §§1153(d), (h). Accordingly, when a visa becomes available for the principal, one becomes available for her spouse and minor children too. And that is so even when (as is usually but not always the case) the spouse and children would not qualify for any family preference category on their own. For example, the child of an F4 petition’s principal beneficiary is the niece or nephew of a U. S. citizen, and federal immigration law does not recognize that relationship. Nonetheless, the child can piggy-back on his qualifying parent in seeking an immigrant visa—although, as will be further discussed, he may not immigrate without her. See 22 CFR §40.1(a)(2); infra, at 6, 20–21, 31–32. Once visas become available, the principal and any derivative beneficiaries must separately file visa applications. See 8 U. S. C. §1202(a). Such an application requires an alien to demonstrate in various ways her ad-missibility to the United States. See, e.g., §1182(a)(1)(A) (alien may not have serious health problems); §1182(a)(2)(A) (alien may not have been convicted of certain crimes); §1182(a)(3)(B) (alien may not have engaged in terrorist activity). Notably, one necessary showing involves the U. S. citizen or LPR who filed the initial petition: To mitigate any possibility of becoming a “public charge,” the visa applicant (whether a principal or de-rivative beneficiary) must append an “affidavit of sup-port” executed by that sponsoring individual. §§1182(a)(4)(C)(ii), 1183a(a)(1). Such an affidavit legally commits the sponsor to support the alien, usually for at least 10 years, with an annual income “not less than125% of the federal poverty line.” §1183a(a)(1)(A); see §§1183a(a)(2)–(3). After the beneficiaries have filed their applications, a consular official reviews the documents and, if everything is in order, schedules in-person interviews. See §1202(h). The interviews for a principal and her children (or spouse) usually occur back-to-back, although those for the children may also come later.[4] The consular official will determine first whether the principal should receive a visa; if (but only if ) the answer is yes, the official will then consider the derivatives’ applications. See 22 CFR §§40.1(a)(2), 42.62, 42.81(a). Provided all goes well, everyone exits the consulate with visas in hand—but that still does not make them LPRs. See 8 U. S. C. §1154(e). Each approved alien must then travel to the United States within a set time, undergo inspection, and confirm her admissibility. See §§1201(c), 1222, 1225(a)–(b). Once again, a derivative’s fate is tied to the principal’s: If the principal cannot enter the country, neither can her children (or spouse). See §1153(d); 22 CFR §40.1(a)(2). When, but only when, an alien with an immigrant visa is approved at the border does she finally become an LPR.[5] B All of this takes time—and often a lot of it. At the front end, many months may go by before USCIS approves the initial sponsoring petition.[6] On the back end, several additional months may elapse while a consular official considers the alien’s visa application and schedules an interview.[7] And the middle is the worst. After a sponsoring petition is approved but before a visa application can be filed, a family-sponsored immigrant may stand in line for years—or even decades—just waiting for an immigrant visa to become available. See, e.g., Dept. of State, Bureau of Consular Affairs, 9 Visa Bulletin, Immigrant Numbers for December 2013 (Nov. 8, 2013). And as the years tick by, young people grow up, and thereby endanger their immigration status. Remember that not all offspring, but only those under the age of 21 can qualify as an “immediate relative” of a U. S. citizen, or as the principal beneficiary of an LPR’s F2A petition, or (most crucially here) as the derivative beneficiary of any family preference petition. See supra, at 3, 5. So an alien eligible to immigrate at the start of the process (when a sponsor files a petition) might not be so at the end (when an immigration official reviews his documents for admission). He may have “aged out” of his original immigration status by the simple passage of time. In 2002, Congress enacted the Child Status Protection Act (CSPA), 116Stat. 927, to address the treatment of those once-but-no-longer-minor aliens. One section of the Act neatly eliminates the “aging out” problem for the offspring of U. S. citizens seeking to immigrate as “immediate relatives.” Under that provision, the “determination of whether [such] an alien satisfies the [immigration law’s] age requirement . . . shall be made using [his] age” on the date the initial petition was filed. 8 U. S. C. §1151(f )(1). The section thus halts the flow of time for that group of would-be immigrants: If an alien was young when a U. S. citizen sponsored his entry, then Peter Pan-like, he remains young throughout the immigration process. A different scheme—and one not nearly so limpid—applies to the offspring of LPRs and aliens who initially qualified as either principal beneficiaries of F2A petitions or derivative beneficiaries of any kind of family preference petition. Section 3 of the CSPA, now codified at 8 U. S. C. §1153(h), contains three interlinked paragraphs that mitigate the “aging out” problem for those prospective immigrants. The first two are complex but, with some perseverance, comprehensible. The third—the key provision here—is through and through perplexing.[8] The first paragraph, §1153(h)(1), contains a formula for calculating the age of an alien “[f ]or purposes of subsections (a)(2)(A) and (d)”—that is, for any alien seeking an immigrant visa directly under F2A or as a derivative beneficiary of any preference category. The “determination of whether [such] an alien satisfies the [immigration law’s] age requirement”—that is, counts as under 21—“shall be made using— “(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of [derivative beneficiaries], the date on which an immigrant visa number became available for the alien’s parent) . . . ; reduced by “(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.” §1153(h)(1). The cross-referenced second paragraph, §1153(h)(2), then explains that the “applicable petition” mentioned is the petition covering the given alien—so again, either an F2A petition filed on his own behalf or any petition extending to him as a derivative. Taken together, those two paragraphs prevent an alien from “aging out” because of—but only because of—bureaucratic delays: the time Government officials spend reviewing (or getting around to reviewing) paperwork at what we have called the front and back ends of the immigration process. See supra, at 6–7. The months that elapse before USCIS personnel approve a family preference petition (“the period during which the applicable petition described in paragraph (2) was pending”) do not count against an alien in determining his statutory “age.” Neither do the months a consular officer lets pass before adjudicating the alien’s own visa application (the period after “an immigrant visa number becomes available for such alien (or . . . [his] parent)”). But the time in between—the months or, more likely, years the alien spends simply waiting for a visa to become available—is not similarly excluded in calculating his age: Every day the alien stands in that line is a day he grows older, under the immigration laws no less than in life. And so derivative beneficiaries, as well as principal beneficiaries of F2A petitions, can still “age out”—in other words, turn 21, notwithstanding §1153(h)(1)’s dual age adjustments—prior to receiving an opportunity to immigrate. What happens then (if anything) is the subject of §1153(h)’s third paragraph—the provision at issue in this case. That paragraph states: “If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, thealien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” The provision thus first references the aged-out beneficiaries of family preference petitions, and then directs immigration officials to do something whose meaning this opinion will further consider—i.e., “automatically convert” an alien’s petition to an “appropriate category.” The Board of Immigration Appeals (BIA) addressed the meaning of §1153(h)(3) in Matter of Wang, 25 I. & N. Dec. 28 (2009); its interpretation there is what we review in this case. Wang was the principal beneficiary of an F4 petition that his sister, a U. S. citizen, filed in 1992. At that time, Wang’s daughter was 10 years old, and thus qualified as a derivative beneficiary. But Wang waited in line for a visa for more than a decade, and by the time his priority date finally came up, his daughter had turned 22 (even after applying §1153(h)(1)’s age-reduction formula). Wang thus obtained a visa for himself, boarded a plane alone, and entered the United States as an LPR. He then filed a new preference petition on his daughter’s behalf—this one under F2B, the category for LPRs’ adult sons and daughters. USCIS approved that petition, with a priority date corresponding to the date of Wang’s filing. Wang contended that under §1153(h)(3), his daughter was instead entitled to “retain the original priority date” given to his sister’s old F4 petition, because that petition could “automatically be converted” to the F2B category. The Board rejected that argument. It explained that “the language of [§1153(h)(3)] does not expressly state which petitions qualify for automatic conversion and retention of priority dates.” Id., at 33. Given that “ambiguity,” the BIA looked to the “recognized meaning” of “the phrase ‘automatic conversion’ ” in immigration statutes and regulations—which it “presume[d]” Congress understood when enacting the CSPA. Id., at 33–35. “Historically,” the BIA showed, that language applied only when apetition could move seamlessly from one family preference category to another—not when a new sponsor was needed to fit a beneficiary into a different category. Id., at 35. Some aged-out aliens’ petitions could accomplish that maneuver, because the alien had a qualifying relationship with the original sponsor, and continued to do so upon aging out; in that event, the Board held, §1153(h)(3) ensured that the alien would retain his original priority date. See id., at 34–35. But the F4 petition filed by Wang’s sister could not “automatically be converted” in that way because Wang’s daughter never had a qualifying relationship with the sponsor: “[N]o category exists for the niece of a United States citizen.” Id., at 35–36. That is why Wang himself had to file a new petition on his daughter’s behalf once she aged out and could no longer ride on his sibling status. The Board saw no evidence that Congress meant “to expand the use of the concept[ ] of automatic conversion” to reach such a case. Id., at 36. And the Board thought such an expansion unwarranted because it would allow aliens like Wang’s daughter, who lacked any independent entitlement to a visa during the years her father spent standing on the F4 queue, to “cut[ ] in line ahead of others awaiting visas in other preference categories.” Id., at 38. C The respondents in this case are similarly situated to Wang, and they seek the same relief. Each was once the principal beneficiary of either an F3 petition filed by a U. S. citizen parent or an F4 petition filed by a U. S. citizen sibling. Each also has a son or daughter who, on the date of filing, was under 21 and thus qualified as a derivative beneficiary of the petition. But as was true of Wang’s daughter, the respondents’ offspring had all turned 21 (even accounting for §1153(h)(1)’s age adjustments) by the time visas became available. Accordingly, the respondents immigrated to the United States alone and, as new LPRs, filed F2B petitions for their sons and daughters. Each argued that under §1153(h)(3), those petitions should get the same priority date as the original F3 and F4 petitions once had. USCIS instead gave the new F2B petitions current priority dates, meaning that the sons and daughters could not leapfrog over others in the F2B line. This case began as two separate suits, one joining many individual plaintiffs and the other certified as a class action. In each suit, the District Court deferred to the BIA’s interpretation of §1153(h)(3) in Wang, and accordingly granted summary judgment to the Government. See Zhang v. Napolitano, 663 F. Supp. 2d 913, 919 (CD Cal. 2009); Costelo v. Chertoff, No. SA08–00688, 2009 WL 4030516 (CD Cal., Nov. 10, 2009). After consolidating the two cases on appeal, a panel of the Ninth Circuit affirmed: Like the lower courts, it found §1153(h)(3) ambiguous and acceded to the BIA’s construction. 656 F. 3d 954, 965–966 (2011). The Ninth Circuit then granted rehearing en banc and reversed in a 6-to-5 decision. 695 F. 3d 1003 (2012). The majority concluded that “the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to [all] aged-out derivative beneficiaries,” and that the Board’s contrary conclusion “is not entitled to deference.” Id., at 1006. We granted certiorari, 570 U. S. ___ (2013), to resolve a Circuit split on the meaning of §1153(h)(3),[9] and we now reverse the Ninth Circuit’s decision. II Principles of Chevron deference apply when the BIA interprets the immigration laws. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 –844 (1984); INS v. Aguirre-Aguirre, 526 U. S. 415 –425 (1999). Indeed, “judicial deference to the Executive Branch is especially appropriate in the immigration context,” where decisions about a complex statu-tory scheme often implicate foreign relations. Id., at 425. (Those hardy readers who have made it this far will surely agree with the “complexity” point.) Under Chevron, the statute’s plain meaning controls, whatever the Board might have to say. See 467 U. S., at 842–843. But if the law does not speak clearly to the question at issue, a court must defer to the Board’s reasonable interpretation, rather than substitute its own reading. Id., at 844. And §1153(h)(3) does not speak unambiguously to the issue here—or more precisely put, it addresses that issue in divergent ways. We might call the provision Janus-faced. Its first half looks in one direction, toward the sweeping relief the respondents propose, which would reach every aged-out beneficiary of a family preference petition. But as the BIA recognized, and we will further explain, the section’s second half looks another way, toward a remedy that can apply to only a subset of those beneficiaries—and one not including the respondents’ offspring. The two faces of the statute do not easily cohere with each other: Read either most naturally, and the other appears to mean not what it says. That internal tension makes possible alternative reasonable constructions, bringing into correspondence in one way or another the section’s different parts. And when that is so, Chevron dictates that a court defer to the agency’s choice—here, to the Board’s expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme. Begin by reading the statute from the top—the part favoring the respondents. Section 1153(h)(3)’s first clause—“If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d)”—states a condition that every aged-out beneficiary of a preference petition satisfies. That is because all those beneficiaries have had their ages “determined under paragraph (1)” (and have come up wanting): Recall that the age formula of §1153(h)(1) applies to each alien child who originally qualified (under “subsections (a)(2)(A) and (d)”) as the principal beneficiary of an F2A petition or the derivative beneficiary of any family preference petition. On its own, then, §1153(h)(3)’s opening clause encompasses the respondents’ sons and daughters, along with every other once-young beneficiary of a family preference petition now on the wrong side of 21. If the next phrase said something like “the alien shall be treated as though still a minor” (much as the CSPA did to ensure U. S. citizens’ children, qualifying as “immediate relatives,” would stay forever young, see supra, at 7–8), all those aged-out beneficiaries would prevail in this case. But read on, because §1153(h)(3)’s second clause instead prescribes a remedy containing its own limitation on the eligible class of recipients. “[T]he alien’s petition,” that part provides, “shall automatically be converted to the appropriate category and the alien shall retain the original priority date.” That statement directs immigration officials to take the initial petition benefitting an alien child, and now that he has turned 21, “convert[ ]” that same petition from a category for children to an “appropriate category” for adults (while letting him keep the old priority date). The “conversion,” in other words, is merely from one category to another; it does not entail any change in the petition, including its sponsor, let alone any new filing. And more, that category shift is to be “automatic”—that is, one involving no additional decisions, contingencies, or delays. See, e.g., Random House Webster’s Unabridged Dictionary 140 (2d ed. 2001) (defining “automatic” as “having the capability of starting, operating, moving, etc., independently”); The American Heritage Dictionary 122 (4th ed. 2000) (“[a]cting or operating in a manner essentially independent of external influence”). The operation described is, then, a mechanical cut-and-paste job—moving a petition, without any substantive alteration, from one (no-longer-appropriate, child-based) category to another (now-appropriate, adult) compartment. And so the aliens who may benefit from §1153(h)(3)’s back half are only those for whom that procedure is possible. The clause offers relief not to every aged-out beneficiary, but just to those covered by petitions that can roll over, seamlessly and promptly, into a category for adult relatives. That understanding of §1153(h)(3)’s “automatic conversion” language matches the exclusive way immigration law used the term when Congress enacted the CSPA. For many years before then (as today), a regulation entitled “Automatic conversion of preference classification” instructed immigration officials to change the preference category of a petition’s principal beneficiary when either his or his sponsor’s status changed in specified ways. See 8 CFR §§204.2(i)(1)–(3) (2002). For example, the regulation provided that when a U. S. citizen’s child aged out, his “immediate relative” petition converted to an F1 petition, with his original priority date left intact. See §204.2(i)(2). Similarly, when a U. S. citizen’s adult son married, his original petition migrated from F1 to F3, see §204.2(i) (1)(i); when, conversely, such a person divorced, his petition converted from F3 to F1, see §204.2(i)(1)(iii); and when a minor child’s LPR parent became a citizen, his F2A petition became an “immediate relative” petition, see §204.2(i)(3)—all again with their original priority dates. Most notable here, what all of those authorized changes had in common was that they could occur without any change in the petitioner’s identity, or otherwise in the petition’s content. In each circumstance, the “automatic conversion” entailed nothing more than picking up the petition from one category and dropping it into another for which the alien now qualified.[10] Congress used the word “conversion” (even without the modifier “automatic”) in the identical way in two other sections of the CSPA. See Law v. Siegel, 571 U. S. ___, ___ (slip op., at 7) (2014) (“[W]ords repeated in different parts of the same statute generally have the same meaning”). Section 2 refers to occasions on which, by virtue of the above-described regulation, a petition “converted” from F2A to the “immediate relative” category because of the sponsor parent’s naturalization, or from the F3 to theF1 box because of the beneficiary’s divorce. 8 U. S. C. §§1151(f )(2), (3). Then, in §6, Congress authorized an additional conversion of the same nature: It directed that when an LPR parent-sponsor naturalizes, the petition he has filed for his adult son or daughter “shall be converted,” unless the beneficiary objects, from the F2B to the F1 compartment—again with the original priority date unchanged. 8 U. S. C. §§1154(k)(1)–(3). (That opt-out mechanism itself underscores the otherwise mechanical nature of the conversion.) Once again, in those cases, all that is involved is a recategorization—moving the same petition, filed by the same petitioner, from one preference classification to another, so as to reflect a change in either the alien’s or his sponsor’s status. In the rest of the CSPA, as in the prior immigration regulation, that is what “conversion” means. And if the term meant more than that in §1153(h)(3), it would undermine the family preference system’s core premise: that each immigrant must have a qualified sponsor. Consider the alternative addressed in Wang—if “automatic conversion” were also to encompass the substitution of a new petitioner for the old one, to make sure the aged-out alien’s petition fits into a new preference category. In a case like Wang, recall, the original sponsor doesnot have a legally recognized relationship with the aged-out derivative beneficiary (they are aunt and niece); accordingly, the derivative’s father—the old principal beneficiary—must be swapped in as the petitioner to enable his daughter to immigrate. But what if, at that point, the father is in no position to sponsor his daughter? Suppose he decided in the end not to immigrate, or failed to pass border inspection, or died in the meanwhile. Or suppose he entered the country, but cannot sponsor a relative’s visa because he lacks adequate proof of parentage or committed a disqualifying crime. See §1154(a)(1)(B)(i)(II); 8 CFR §204.2(d)(2); supra, at 4. Or suppose he does not want to—or simply cannot—undertake the significant financial obligations that the law imposes on someone petitioning for an alien’s admission. See 8 U. S. C. §§1183a(a)(1)(A), (f )(1)(D); supra, at 5. Immigration officials cannot assume away all those potential barriers to entry: That would run counter to the family preference system’s insistence that a qualified and willing sponsor back every immigrant visa. See §§1154(a)–(b). But neither can they easily, or perhaps at all, figure out whether such a sponsor exists unless he files and USCIS approves a new petition—the very thing §1153(h)(3) says is not required. Indeed, in cases like Wang, the problem is broader: Under the statute’s most natural reading, a new qualified sponsor will hardly ever exist at the moment the petition is to be “converted.” Section 1153(h)(3), to be sure, does not explicitly identify that point in time. But §1153(h)(1) specifies the date on which a derivative beneficiary is deemed to have either aged out or not: It is “the date on which an immigrant visa number became available for the alien’s parent.” See §§1153(h)(1)(A)–(B). Because that statutory aging out is the one and only thing that triggers automatic conversion for eligible aliens, the date of conversion is best viewed as the same. That reading, more-over, comports with the “automatic conversion” regulation on which Congress drew in enacting the CSPA, see supra, at 16–17: The rule authorizes conversions “upon” or “as of the date” of the relevant change in the alien’s status (including turning 21))—regardless when USCIS may receive notice of the change. 8 CFR §204.2(i); but cf. post, at 14 (Sotomayor, J., dissenting) (wrongly stating that under that rule conversion occurs upon the agency’s receipt of proof of the change). But on that date, no new petitioner will be ready to step into the old one’s shoes if such a substitution is needed to fit an aged-out beneficiary into a different category. The beneficiary’s parent, on the day a “visa number became available,” cannot yet be an LPR or citizen; by definition, she has just become eligible to apply for a visa, and faces a wait of at least several months before she can sponsor an alien herself. Nor, except in a trivial number of cases, is any hitherto unidentified person likely to have a legally recognized relationship to the alien. So if an aged-out beneficiary has lost his qualifying connection to the original petitioner, no conversion to an “appropriate category” can take place at the requisite time. As long as immigration law demands some valid sponsor, §1153(h)(3) cannot give such an alien the designated relief. On the above account—in which conversion entails a simple reslotting of an original petition into a now-appropriate category—§1153(h)(3)’s back half provides a remedy to two groups of aged-out beneficiaries. First, any child who was the principal beneficiary of an F2A petition (filed by an LPR parent on his behalf) can take advantage of that clause after turning 21. He is, upon aging out, the adult son of the same LPR who sponsored him as a child; his petition can therefore be moved seamlessly—without the slightest alteration or delay—into the F2B category. Second, any child who was the derivative beneficiary of an F2A petition (filed by an LPR on his spouse’s behalf) can similarly claim relief, provided that under the statute, he is not just the spouse’s but also the petitioner’s child.[11] Such an alien is identically situated to the aged-out principal beneficiary of an F2A petition; indeed, for the price of another filing fee, he could just as easily have been named a principal himself. He too is now the adult son of the original LPR petitioner, and his petition can also be instantly relabeled an F2B petition, without any need to substitute a new sponsor or make other revisions. In each case, the alien had a qualifying relationship before he was 21 and retains it afterward; all that must be changed is the label affixed to his petition.[12] In contrast, as the Board held in Wang, the aged-out derivative beneficiaries of the other family preference categories—like the sons and daughters of the respondents here—cannot qualify for “automatic conversion.” Recall that the respondents themselves were principal beneficiaries of F3 and F4 petitions; their children, when under 21, counted as derivatives, but lacked any qualifying preference relationship of their own. The F3 derivatives were the petitioners’ grandsons and granddaughters; the F4 derivatives their nephews and nieces; and none of those are relationships Congress has recognized as warranting a family preference. See 8 U. S. C. §§1153(a)(3)–(4). Now that the respondents’ children have turned 21, and they can no longer ride on their parents’ coattails, that lack of independent eligibility makes a difference. For them, unlike for the F2A beneficiaries, it is impossible simply to slide the original petitions from a (no-longer-appropriate) child category to a (now-appropriate) adult one. To fit into a new category, those aged-out derivatives, like Wang’s daughter, must have new sponsors—and for all the reasons already stated, that need means they cannot benefit from “automatic conversion.” All that said, we hold only that §1153(h)(3) permits—not that it requires—the Board’s decision to so distinguish among aged-out beneficiaries. That is because, as we explained earlier, the two halves of §1153(h)(3) face in different directions. See supra, at 14. Section 1153(h)(3)’s first part—its conditional phrase—encompasses every aged-out beneficiary of a family preference petition, and thus points toward broad-based relief. But as just shown, §1153(h)(3)’s second part—its remedial prescription—applies only to a narrower class of beneficiaries: those aliens who naturally qualify for (and so can be “automatically converted” to) a new preference classification when they age out. Were there an interpretation that gave each clause full effect, the Board would have been required to adopt it. But the ambiguity those ill-fitting clauses create instead left the Board with a choice—essentially of how to reconcile the statute’s different commands. The Board, recognizing the need to make that call, opted to abide by the inherent limits of §1153(h)(3)’s remedial clause, rather than go beyond those limits so as to match the sweep of the section’s initial condition. On the Board’s reasoned view, the only beneficiaries entitled to statutory relief are those capable of obtaining the remedy designated. When an agency thus resolves statutory tension, ordinary principles of administrative deference require us to defer. See National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 666 (2007) (When a statutory scheme contains “a fundamental ambiguity” arising from “the differing mandates” of two provisions, “it is appropriate to look to the implementing agency’s expert interpretation” to determine which “must give way”). III The respondents urge us to overturn the Board’s judgment for three independent reasons. First, and principally, they take issue with the Board’s—and now our—viewof the limits associated with “automatic conversion”: They argue that every aged-out beneficiary’s petition can “automatically be converted” to an “appropriate category,” and that the two halves of §1153(h)(3) are thus reconcilable. Second, the respondents contend that even if “automatic conversion” does not extend so far, §1153(h)(3) separately entitles each such beneficiary to the benefit of his original petition’s priority date. And third, they claim that the Board’s way of resolving whatever ambiguity inheres in §1153(h)(3) is arbitrary and capricious. The dissenting opinion reiterates the first two arguments, though with slight variation and in opposite order, while forgoing the third. See post, at 9–19 (opinion of Sotomayor, J.) (hereinafter the dissent). We find none of the contentions persuasive. A The respondents (and the dissent) initially aver that every aged-out beneficiary (including their own sons and daughters) can “automatically be converted” to an “appropriate” immigration category, if only immigration officials try hard enough. The Government, in the respondents’ view, can accomplish that feat by substituting new sponsors for old ones, and by “managing the timing” of every conversion to ensure such a new petitioner exists on the relevant date. Brief for Respondents 33. And because, the respondents say, it is thus possible to align the two halves of §1153(h)(3)—even if through multiple administrative maneuvers—immigration officials are under an obligation to do so. We disagree, for reasons that should sound familiar: Several are the same as those we have just given for upholding the Board’s interpretation. But still, we walk through the respondents’ argument step-by-step, to show how far it departs from any ordinary understanding of “automatic conversion.” The first (and necessary) premise of that argument does not augur well for the remainder: It is the view that the “automatic conversion” procedure permits a change in the petitioner’s identity. According to the respondents, the aged-out beneficiaries’ parents, upon becoming LPRs, can be subbed in for the original sponsors (i.e., the beneficiaries’ grandparents, aunts, and uncles), and the petitions then converted to the F2B category. But as we have shown, the “automatic conversion” language—as most naturally read and as long used throughout immigration law—contemplates merely moving a petition into a new and valid category, not changing its most essential feature. See supra, at 15–17. That alone defeats the respondents’ position. And a further problem follows—this one concerning the date of automatic conversion. The respondents need that date to come at a time when the derivative beneficiaries’ parents (the substitute petitioners) are already living in the United States as LPRs; otherwise, the petitions could not qualify for the F2B box. In an attempt to make that possible, the respondents propose that conversion be viewed as taking place when “the derivative beneficiary’s visa . . . application is adjudicated.” Brief for Respondents 29. But as we have (again) demonstrated, the statute is best read as establishing a different date: that “on which an immigrant visa number became available for the alien’s parent”—when, by definition, the parent is not yet an LPR. §1153(h)(1); see supra, at 18–19. That is the moment when a derivative ages out, which is the single change conversion reflects. By contrast, the respondents’ suggested date has no connection to that metamorphosis; the date of adjudication is merely when an immigration official later discovers that a child has turned 21. And that date is itself fortuitous, reflecting no more than when an immigration officer got around to reviewing a visa application: The possibility of conversion would thus depend on bureaucratic vagaries attending the visa process. So the respondents’ mistaken view of the timing of conversion is another off-ramp from their argument.[13] Yet there is more—because even after substituting a new petitioner and delaying the conversion date in a way the statute does not contemplate, the respondents must propose yet further fixes to make “automatic” conversion work for their sons and daughters. The respondents’ next problem is that even on the conversion date they propose, most of them (and other derivatives’ parents) were not yet LPRs, and so could not possibly be sponsors. In the ordinary course, principal and derivative beneficiaries living abroad apply for their visas at the same time and go to the consulate together for back-to-back interviews. See supra, at 6. And even if the parent is approved first, that alone does not make her an LPR; she still must come to this country, demonstrate her continued eligibility, and pass an inspection. See ibid. Thus, the respondents must recommend changes to the visa process to get the timing to work—essentially, administrative juggling to hold off the derivative beneficiary’s visa adjudication until his parent has become an LPR. In particular, they suggest that the consular official defer the derivative’s interview, or that the official nominally “reject the application” and then instruct the derivative to “reapply after the principal beneficiary immigrates.” Brief for Respondents 30. But the need for that choreography (which, in any event, few if any of the respondents conformed to) renders the conversion process only less “automatic,” because now it requires special intervention, purposeful delay, and deviation from standard administrative practice. Conversion has become not a machine that would go of itself, but a process painstakingly managed. And after all this fancy footwork, the respondents’ scheme still cannot succeed, because however long a visa adjudication is postponed, a derivative’s parent may never become able to sponsor a relative’s visa—and immigration officials cannot practicably tell whether a given parent has done so. We have noted before the potential impediments to serving as a petitioner—including that a parent may not immigrate, may not qualify as a sponsor, or may not be able to provide the requisite financial support. See supra, at 17–18. The respondents offer no way to deal with those many contingencies. Require the parent to submit a new petition? But the entire point of automatic conversion (as the respondents themselves agree) is to obviate the need for such a document. See Brief for Respondents 30, 42. Investigate the parent’s eligibility in some other way? But even were that possible (which we doubt) such an inquiry would not square with the essential idea of an automatic process. Disregard the possibility that no legal sponsor exists? But then visas would go, inevitably and not infrequently, to ineligible aliens. And so the workarounds have well and truly run out on the respondents’ argument.[14] That leaves us with the same statutory inconsistency with which we began. Having followed each step of the respondents’ resourceful (if Rube Goldbergish) argument, we still see no way to apply the concept of automatic conversion to the respondents’ children and others like them. And that means we continue to face a statute whose halves do not correspond to each other—giving rise to an ambiguity that calls for Chevron deference. B The respondents, however, have another idea for reconciling §1153(h)(3)’s front and back parts (and this back-up claim becomes the dissent’s principal argument). Recall that the section’s remedial clause instructs that “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” The respondents (and the dissent) ask us to read the italicized language as conferring a benefit wholly independent of automatic conversion. On that view, aged-out derivatives, even though ineligible for conversion, could “retain the[ir] original priority date[s]” if their parents file a new petition (as the respondents in fact did here “as a protective matter,” Tr. of Oral Arg. 55). And then, everyone encompassed in §1153(h)(3)’s first clause would get at least some form of relief (even if not both forms) from the section’s second. For this argument, the respondents principally rely on the word “and”: “Where the word ‘and’ connects two” phrases as in §1153(h)(3)’s back half, the respondents contend, those terms “operate independently.” Brief for Respondents 39; see post, at 9. But the conjunction “and” does not necessarily disjoin two phrases in the way the respondents say. In some sentences, no doubt, the respondents have a point. They use as their primary example: “[I]f the boat takes on water, then you shall operate the bilge pump and you shall distribute life jackets.” Brief for Respondents 39; see also post, at 10 (offering further examples). We agree that “you shall distribute life jackets” functions in that sentence as an independent command. But we can come up with many paired dictates in which the second is conditional on the first. “If the price is reasonable, buy two tickets and save a receipt.” “If you have time this summer, read this book and give me a report.” Or, shades of this case: “If your cell-phone contract expires, buy a new phone and keep the old number.”[15] In each case, the second command functions only once the first is accomplished. Whether “and” works in that way or in the respondents’ depends, like many questions of usage, on the context. See, e.g., Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 566 U. S. ___, ___ (2012). Here, we think, context compels the Board’s view that the instructions work in tandem. The first phrase instructs immigration officials to convert a petition (when an “appropriate category” exists); the next clarifies that such a converted petition will retain the original priority date, rather than receive a new one corresponding to the date of conversion. That reading comports with the way retention figures in other statutory and regulatory provisions respecting “conversions”; there too, retention of a priority date is conditional on a conversion occurring. See 8 U. S. C. §§1154(k)(1)–(3); 8 CFR §204.2(i); supra, at 16. The respondents wish to unhook the “retention” phrase from that mooring, and use it to explain what will attend a different event—that is, the filing of a new petition. But that is to make “retention” conditional on something the statute nowhere mentions—a highly improbable thing for Congress to have done. (If, once again, a teacher says to “read this book and give me a report,” no one would think he wants a report on some unidentified subject.) And indeed, the respondents’ and dissent’s own examples prove this point: In not a single one of their proffered sentences is the second command contingent on the occurrence of some additional, unstated event, as it would have to be under the respondents’ construction of §1153(h)(3); rather, each such command (e.g., “distribute life jackets”) flows directly from the stated condition (e.g., “if the boat takes on water”). So by far the more natural understanding of §1153(h)(3)’s text is that retention follows conversion, and nothing else. The respondents’ contrary view would also engender unusual results, introducing uncertainty into the immigration system’s operation and thus interfering with statutory goals. Were their theory correct, an aged-out alien could hold on to a priority date for years or even decades while waiting for a relative to file a new petition. Even if that filing happened, say, 20 years after the alien aged out, the alien could take out his priority-date token, and assert a right to spring to the front of any visa line. At that point, USCIS could well have a hard time confirming the old priority date, in part because the names of derivative beneficiaries need not be listed on a visa petition. And the possibility of such leap-frogging from many years past would impede USCIS’s publication of accurate waiting times. As far as we know, immigration law nowhere else allows an alien to keep in his pocket a priority date untethered to any existing valid petition. Without some clearer statement, we cannot conclude Congress intended here to create such a free-floating, open-ended entitlement to a defunct petition’s priority date. See Wang, 25 I. & N. Dec., at 36.[16] C Finally, the respondents contend that even if §1153(h)(3) points at once in two directions—toward a broader scope in its first half and a narrower one in its second—the BIA acted unreasonably in choosing the more restrictive reading. In their view, the Board has offered no valid reason, consistent with “the purposes and concerns of the immigration laws,” to treat their own sons and daughters less favorably than aliens who were principal and derivative beneficiaries of F2A petitions. Brief for Respondents 47. Indeed, the respondents suggest that the BIA, “for its own unfathomable reasons, disapproves of Congress’s decision to allow any aged-out” aliens to get relief, and has thus “limited [§1153(h)(3)] to as few derivative beneficiaries as possible.” Id., at 55. We cannot agree. At the least, the Board’s interpretation has administrative simplicity to recommend it. Under that view, immigration authorities need only perform the kind of straightforward (i.e., “automatic”) conversion they have done for decades—moving a petition from one box to another to reflect a given status change like aging out. See Wang, 25 I. & N. Dec., at 36. The respondents, as we have shown, would transform conversion into a managed, multi-stage process, requiring immigration and consular officials around the world to sequence and delay every aged-out alien’s visa adjudication until they are able to confirm that one of his parents had become a qualifying and willing F2B petitioner. And according to the Government’s (incomplete) statistics, that would have to happen in, at a minimum, tens of thousands of cases every year. See Reply Brief 18, n. 13. Still more important, the Board offered a cogent argument, reflecting statutory purposes, for distinguishing between aged-out beneficiaries of F2A petitions and the respondents’ sons and daughters. See Wang, 35 I. & N. Dec., at 38. As earlier explained, the F2A beneficiaries have all had a qualifying relationship with an LPR for the entire period they have waited in line—i.e., since their original priority dates. See supra, at 19–20. That means that when immigration authorities convert their petitions, they will enter the F2B line at the same place as others who have had a comparable relationship for an equal time. The conversion thus fits with the immigration law’s basic first-come-first-served rule. See 8 U. S. C. §1153(e); supra, at 4. By contrast, the derivative beneficiaries of F3 and F4 petitions, like the respondents’ sons and daughters, lacked any qualifying relationship with a citizen or LPR during the period they waited in line. See supra, at 20–21. They were, instead, the grandchildren, nieces, or nephews of citizens, and those relationships did not independently entitle them to visas. If such aliens received relief under §1153(h)(3), they would jump over thousands of others in the F2B line who had a qualifying relationship with an LPR for a far longer time. That displacement would, the Board reasonably found, scramble the priority order Congress prescribed. The argument to the contrary assumes that the respondents’ sons and daughters should “receive credit” for all the time the respondents themselves stood in line. Brief for Respondents 50. But first, the time the respondents spent waiting for a visa may diverge substantially from the time their children did. Suppose, for example, that one of the respondents had stood in the F4 queue for 15 years, and with just 4 years to go, married someone with a 17-year-old son. Under the respondents’ reading, that derivative beneficiary, after aging out, would get the full benefit of his new parent’s wait, and so displace many thousands of aliens who (unlike him) had stood in an immigration queue for nearly two decades. And second, even when the derivative qualified as such for all the time his parent stood in line, his status throughout that period hinged on his being that parent’s minor child. If his parent had obtained a visa before he aged out, he would have been eligible for a visa too, because the law does not demand that a prospective immigrant abandon a minor child. But if the parent had died while waiting for a visa, or had been found ineligible, or had decided not to immigrate after all, the derivative would have gotten nothing for the time spent in line. See supra, at 5–6. Similarly, the Board could reasonably conclude, he should not receive credit for his parent’s wait when he has become old enough to live independently. In the unavoidably zero-sum world of allocating a limited number of visas, the Board could decide that he belongs behind any alien who has had a lengthier stand-alone entitlement to immigrate. IV This is the kind of case Chevron was built for. What-ever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly. Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law. Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role. We decline that path, and defer to the Board. We therefore reverse the judgment of the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.Notes 1 An alien already in the United States—for example, on a student or temporary worker visa—must obtain “adjustment of status” rather than an immigrant visa to become a lawful permanent resident. See . Because the criteria for securing adjustment of status and obtaining an immigrant visa are materially identical, we use the single term “immigrant visa” to refer to both. 2 The “family preference” label, as used by immigration officials, applies only to these five classifications, and not to the category for “im-mediate relatives” of U. S. citizens. See Brief for Petitioners 3, n. 1. 3 Immigrant visas can also go to aliens with special, marketable skills, see §§1151(a)(2), 1153(b), or to aliens from countries with historically low immigration to the United States, see §§1151(a)(3), 1153(c). None of the respondents here sought visas under those “employment-based” or “diversity” categories. 4 See Dept. of State, The Immigrant Visa Process: Visa Applicant Interview, online at http://travel.state.gov/content/visas/english/immigrate/immigrant-process/interview/applicant_interview.html (all Internet materials as visited June 5, 2014, and available in Clerk of Court’s case file). 5 The last part of the immigration process is streamlined for aliens already residing in the United States who have applied for adjustment of status. See n. 1, . The immigration officer interviewing such an alien, upon finding her visa-eligible, may declare her an LPR on the spot. See . But here too, the officer will not make a derivative beneficiary an LPR unless and until he approves that status for the principal. See 22 CFR §40.1(a)(2). 6 See USCIS, Processing Time Information, online at https://egov.uscis.gov/cris/processingTimesDisplayInit.do. 7 See The Immigrant Visa Process: Interview, online at http://travel.state.gov/content / visas / english / immigrate / immigrant-process /interview.html. 8 The full text of these three paragraphs, for the masochists among this opinion’s readers, is as follows: 9 Compare 695 F. 3d 1003, 1006 (CA9 2012) (case below) (holding that §1153(h)(3) extends relief to all aged-out derivative beneficiaries); v. , 655 F. 3d 363, 365 (CA5 2011) (same), with v. , 654 F. 3d 376, 385 (CA2 2011) (holding that §1153(h)(3) not merely permits, but requires the Board’s contrary interpretation). 10 The dissent responds to this fact only with a pair of non-sequiturs. at 18–19 (opinion of ). First, the dissent cites a statutory provision that does not use the word “conversion” at all, so can hardly attest to its meaning. See . And next, the dissent cites a regulation that post-dated the CSPA by years, and thus is equally irrelevant to what Congress intended. See 71 Fed. Reg. 35732, 35749 (2006) (adding 8 CFR §204.2(i)(1)(iv)). More-over, both provisions relate to a circumstance in which a person can -petition for a visa because her U. S. citizen or LPR relative either died or engaged in domestic abuse. In that situation, the alien’s eligibility rests throughout on her connection to the deceased or abusive relative; no new party must ever come in, as one has to in a case like , to salvage a no-longer-effective petition. See , at 18 (addressing the problems that the substitution of a new petitioner raises). 11 Given the statute’s broad definition of “child,” the only F2A derivative beneficiaries who fall outside that proviso are stepchildren who were over the age of 18 when the petitioner married the spousal beneficiary. See §1101(b)(1)(B). The Government represents that thousands of children are designated as F2A derivatives every year. See Reply Brief 18, n. 13. 12 It is, therefore, impossible to understand the dissent’s statement that conversion of such a petition to an appropriate category requires “ ‘substantive alteration’ to [the] petition.” See , at 19, n. 8 (opinion of . 13 Still, the respondents’ view of the timing of conversion is better than the dissent’s. As an initial matter, the dissent’s objection to assessing conversion as of the date a visa becomes available hinges on an imaginary difficulty. That approach, the dissent complains, cannot be right because that date always “occurs before the point at which the child is determined to have aged-out.” at 15Well, yes. The date a visa becomes available is, under the statute, the date an alien ages out (or not); and that status change of course occurs before an immigration official, reviewing a visa application, finds that it has done so. But what of it? When an official determines that an alien was no longer a child on the date a visa became available, he also assesses whether automatic conversion was available to the alien that prior date. In other words, here as elsewhere in immigration law, conversion occurs (or not) upon the date of the relevant status change—and no other. See at 19. And once that is understood, the supposed difficulties the dissent throws up all melt away. At the time of the status change, F2A petitions can be converted without further contingencies, decisions, or delays, whereas no other petitions can. But cf. at 16, 17, n. 7 (countering, irrelevantly, that an F2A petition is automatically converted, additional steps remain in the immigration process). And immigration officials later reviewing visa applications know that fact, and can treat the different classes of aged-out beneficiaries accordingly. 14 Nor does the dissent offer any serious aid to the respondents. The dissent initially acknowledges that automatic conversion cannot involve “additional decisions, contingencies, or delays.” , at 13. But no worries, the dissent continues: “[O]nce [an alien’s parent] provides confirmation of her eligibility to sponsor” the aged-out alien, the original petition “can automatically be converted to an F2B petition, with no additional decision or contingency” or (presumably) delay. ,at 14. Think about that: Once every decision, contingency, and delay we have just described is over (and a parent has at long last turned out to be a viable sponsor), the dissent assures us that no further decisions, contingencies, and delays remain. Or, put differently, there are no contingencies after all the contingencies have been resolved; no decisions after all the decisions have been made; and no delay after all the delay has transpired. And as if that argument were not awkward enough, consider that it would make automatic conversion turn on the filing of a new document that shows the parent’s eligibility to sponsor her aged-out son or daughter—the very thing, as all parties agree, that conversion is supposed to render unnecessary. See at 18, 26. 15 The dissent appears to think that something helpful to its view follows from repeating the word “shall” and changing the subject of the commands. See at 9–10. But that is not so, as some further examples show. “If you advance to the next round, my assistant shall schedule an interview and you shall come in to answer questions.” “If the plane is low on fuel, the tanks shall be refilled and the pilot shall fly the route as scheduled.” In these sentences, as in our prior ones, the second command is conditional on the first; all that differs is that these sentences are (much like statutes) more formal and stilted. And the dissent’s citation of v. , , adds nothing to its argument. There, we construed the following provision: “[T]here shall be allowed to the holder of [a secured] claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.” , at 241. We held that the phrase “provided for under the agreement” qualifies the words “any reasonable fees, costs, or charges,” but not the words “interest on such claim.” at 241–242. What relevance that interpretation bears to this case eludes us. 16 The dissent claims that USCIS “administered priority date retention in exactly this manner” before the CSPA’s enactment, , at 10, but that confident assertion is just not so—or at least not in any way that assists the respondents. The dissent principally relies on 8 CFR §204.2(a)(4), which prior to the CSPA’s enactment permitted an aged-out F2A derivative beneficiary to retain his old priority date “if [a] subsequent petition is filed ” as filed the original. Far from authorizing an open-ended, free-floating entitlement, that now-superseded regulation allowed an alien to keep his priority date only if he (unlike the respondents’ offspring) had a qualifying relationship with the initial petitioner—that is, only if he fell within the group that the BIA in thought entitled to reliefSee 25 I. & N. Dec., at 34–35. And the other provisions the dissent cites (which, unlike §204.2(a)(4), continue to operate) similarly fail to support the dissent’s position, because they enable an alien to retain a priority date only if attached to an existing valid petition. See (permitting an alien to retain a priority date associated with an ex-isting F2B petition); 8 CFR §204.5(e) (permitting an alien to retain apriority date associated with an existing employment-based peti-tion); §204.12(f)(1) (permitting an alien to retain a priority dateassociated with an existing employment-based petition for immigrating physicians).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SCIALABBA, ACTING DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al. v. CUELLAR de OSORIO et al. certiorari to the united states court of appeals for the ninth circuit No. 12–930. Argued December 10, 2013—Decided June 9, 2014 The Immigration and Nationality Act permits qualifying U. S. citizens and lawful permanent residents (LPRs) to petition for certain family members to obtain immigrant visas. A sponsored individual, known as the principal beneficiary, is placed into a “family preference” category based on his relationship with the petitioner. 8 U. S. C. §§1153(a)(1)–(4). The principal beneficiary’s spouse and minor children in turn qualify as derivative beneficiaries, “entitled to the same status” and “order of consideration” as the principal. §1153(d). The beneficiaries then become eligible to apply for visas in order of “priority date”—that is, the date a petition was filed. §1153(e)(1). Because the immigration process often takes years or decades to complete, a child seeking to immigrate may “age out”—i.e., reach adulthood and lose her immigration status—before she reaches the front of the visa queue. The Child Status Protection Act (CSPA) sets forth a remedy in that circumstance, providing that “[i]f the age of an alien is determined . . . to be 21 years of age or older,” notwithstanding certain allowances for bureaucratic delay, §§1153(h)(1)–(2), “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” §1153(h)(3). Respondents, principal beneficiaries who became LPRs, filed petitions for their aged-out children, asserting that the newly filed petitions should receive the same priority date as their original petitions. Instead, U. S. Citizenship and Immigration Services (USCIS) gave the new petitions current priority dates. The District Court granted the Government summary judgment, deferring to the Board of Immigration Appeals’ (BIA’s) determination that only those petitions that can be seamlessly converted from one family preference category to another without the need for a new sponsor are entitled to conversion under §1153(h)(3). The en banc Ninth Circuit reversed, holding that the provision unambiguously entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention. Held: The judgment is reversed, and the case is remanded. 695 F.3d 1003, reversed and remanded. Justice Kagan, joined by Justice Kennedy and Justice Ginsburg, concluded that the BIA’s textually reasonable construction of §1153(h)(3)’s ambiguous language was entitled to deference. . (a) Because §1153(h)(3) does not speak unambiguously to the issue here, a court must defer to the BIA’s reasonable interpretation. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844. The first clause of §1153(h)(3) states a condition that encompasses every aged-out beneficiary of a family preference petition. The second clause, however, does not easily cohere with the first. It prescribes a remedy that can apply to only a subset of the beneficiaries described in the first clause. This remedial prescription directs immigration officials to take the alien’s petition and convert it from a category benefitting a child to an appropriate category for adults, without any change in the petition, including its sponsor, or any new filing. Moreover, this conversion is to be “automati[c]”—that is, one involving no additional decisions, contingencies, or delays. Thus, the only aliens who may benefit from §1153(h)(3)’s back half are those for whom automatic conversion is possible. The understanding that “automatic conversion” entails nothing more than picking up the petition from one category and dropping it into another for which the alien now qualifies matches the exclusive way immigration law used the term when §1153(h)(3) was enacted. See 8 CFR §204.2(i)(1)–(3) (2002). And Congress used the word “conversion” in the identical way elsewhere in the CSPA. See, e.g., §§1151(f)(2), (3). If the term meant more than that in §1153(h)(3), it would undermine the family preference system’s core premise: that each immigrant must have a qualified and willing sponsor. See §§1154(a), (b). If an original sponsor does not have a legally recognized relationship with the aged-out derivative beneficiary, another sponsor, e.g., the old principal beneficiary, must be swapped in for the alien to qualify for a new family preference category. But immigration officials cannot assume that a new sponsor is eligible and willing to petition on the alien’s behalf, given the numerous requirements the law imposes on family preference petitioners. See, e.g., §1154(a)(1)(B)(i)(II). Nei-ther can they figure out whether a valid sponsor exists unless he files and USCIS approves a new petition—the very thing §1153(h)(3) says is not required. In any case, a new qualified sponsor will rarely exist at the requisite time. An alien is deemed to age out on “the date on which an immigrant visa number became available for the alien’s parent.” §1153(h)(1)(A). Since aging out triggers automatic conversion, the date of automatic conversion is best viewed as the same. But at that time, the aged-out beneficiary’s parent cannot yet be a citizen or LPR, and so no new, qualified sponsor will be ready to step into the old one’s shoes. On the above account, §1153(h)(3)’s second clause provides a remedy to those principal and derivative beneficiaries who had a qualifying relationship with an LPR both before and after they aged out. In contrast, aliens like respondents’ children—the nieces, nephews, and grandchildren of the initial sponsors—cannot qualify for “automatic conversion”: they lacked a qualifying preference relationship with the initial petitioner, and so cannot fit into a new preference category without obtaining a new sponsor. The ambiguity created by §1153(h)(3)’s ill-fitting clauses left the BIA to choose how to reconcile the statute’s different commands. It reasonably opted to abide by the inherent limits of §1153(h)(3)’s remedial clause, rather than go beyond those limits so as to match the sweep of the first clause’s condition. When an agency thus resolves statutory tension, ordinary principles of administrative deference require this Court to defer. See National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666. . (b) Respondents take issue with the BIA’s interpretation, but none of their contentions is persuasive. . (1) Respondents aver that every aged-out beneficiary could be automatically converted if immigration officials substituted new sponsors and managed the timing of conversion so that a new sponsor existed on the relevant date. These administrative maneuvers are not in keeping with the natural and long-established meaning of “automatic conversion,” they require conversion to occur on a date that has no connection to the alien’s aging out, and they demand administrative juggling to make automatic conversion work. And that painstakingly managed process still cannot succeed because a derivative’s parent may never become able to sponsor a visa—and immigration officials cannot practicably tell whether a given parent has done so. . (2) Respondents argue that the word “and” in the second clause of §1153(h)(3) indicates that priority date retention is a benefit wholly independent of automatic conversion. But “and” does not necessarily disjoin two phrases, and context suggests that the instructions work in tandem. In other statutory and regulatory provisions respecting “conversions,” retention of a priority date is conditional on a conversion occurring. See, e.g., §§1154(k)(1)–(3). Respondent’s reading would make priority date retention conditional on something the statute nowhere mentions. And it would engender unusual results that, without some clearer statement, the Court cannot conclude that Congress intended. . (3) Finally, respondents contend that, assuming §1153(h)(3) is ambiguous, the BIA acted unreasonably in choosing the more restrictive reading. But the BIA’s interpretation benefits from administrative simplicity and fits with immigration law’s basic first-come, first-served rule. By contrast, respondents would scramble the priority order Congress established by allowing aged-out derivative beneficiaries, like respondents’ sons and daughters, to enter the visa queue ahead of beneficiaries who had a qualifying relationship with an LPR for a far longer time. . The Chief Justice, joined by Justice Scalia, agreed that the BIA’s interpretation was reasonable, but not because an agency has authority to resolve direct conflicts within a statute. There is no conflict or internal tension in §1153(h)(3). The first clause of the provision defines the persons potentially affected, but does not grant anything to anyone. The particular benefit provided by the statute—automatic conversion and retention of priority date—is found exclusively in the second clause, and that relief requires, at minimum, that an aged-out beneficiary have his own eligible sponsor who is committed to providing financial support for the beneficiary. Beyond that, Congress did not speak clearly to which petitions can be automatically converted. The BIA’s reasonable interpretation of §1153(h)(3) is consistent with the ordinary meaning of the statutory terms, with the established meaning of automatic conversion in immigration law, and with the structure of the family-based immigration system. . Kagan, J., announced the judgment of the Court and delivered an opinion, in which Kennedy and Ginsburg, JJ., joined. Roberts, C. J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Alito, J., filed a dissenting opinion. Sotomayor, J., filed a dissenting opinion, in which Breyer, J., joined, and in which Thomas, J., joined except as to footnote 3.

Section 1153(h)(1) of the Immigration and Nationality Act (Act) provides that an alien whose age is determined under the Act to be 21 years of age or older shall automatically be converted to an F2A or derivative beneficiary of any family preference petition, and shall retain the original priority date issued upon receipt of the original petition. The Act provides that, if the age of an alien is determined, by the date of the relevant status change in the alien, the alien shall automatically become a derivative beneficiary. Under the Act, an alien must show that he has a known familial relationship with the sponsoring family, and that, in turn, that relationship disqualifies the alien from a visa. The Act caps the number of visas issued each year in the five family preference categories, and, as a consequence, the principal beneficiary of the approved petition is placed in a queue with others in her category (F1) in order of priority date. From that date, visas are available for beneficiaries with priority dates earlier than the cut-off date, but even with that provision, the beneficiary may age out solely because of the time he spent waiting in line for a visa to become available. In this case, the Board of Immigration Appeals (BIA or Board) said no, interpreting the Act as providing relief to only a subset of that group (specifically, those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent). The Court of Appeals affirmed. Held: 1. The Board correctly concluded that the Act grants a remedy to all aliens who have thus outpaced the immigration process, i.e., those aliens who counted as child beneficiaries when a sponsoring petition was filed, but no longer do so (even after excluding administrative delays) by the time they reach the front of the visa queue. . (a) Under Chevron, the plain meaning controls, whatever the Board might have to say to the Board to speak to it. P.. (b) The Act addresses the issue of when an alien can, on the face of it, automatically convert his G2A petition to a F2B petition. Here, the first part of the Act contains a formula for calculating an alien's age, and the second part (its remedial prescription) applies only to a narrower class of beneficiaries: those aliens, who naturally qualify for (and so can be automatically converted to) a new preference classification when they age out. Moreover, the second clause prescribes a remedy containing its own limitation on the eligible class of recipients. If such an alien, upon aging out, has a qualifying relationship with an LPR, his petition can be moved seamlessly (without the slightest alteration or delay) from a category for children to an "appropriate category" for adults (while letting him keep the old priority date) without any additional decisions, contingencies, or delays. Thus, the case is remanded for further proceedings consistent with Chevron.. 2. There are no contentions persuasive in the contentions of the Board or Board that, even if the Act points at once in two directions, the BIA acted unreasonably in choosing the more restrictive reading. On the one hand, the statute is best read as establishing a different date: that on which an immigrant visa number becomes available for the alien when the applicable petition is filed, when, by definition, the parent of the alien is not yet a LPR. And on the other hand, immigration officials need only perform the kind of straightforward automatic conversion that they have done for decades: moving a petition from one preference classification to another, so as to reflect a change in either the alien's or his sponsor's status. On the other, however, the need for administrative juggling to hold off the alien adjudication until his parent has become an L PR is rendered unnecessary by the fact that, at the time of the status change, most of the aged beneficiaries (including their own sons and daughters) were not yet LPRs, and thus could not possibly be sponsors... 3. Nor is there any merit to respondents' contentions that even if §1153 (h)(3) does not extend so far, it separately entitles each such beneficiary to the benefit of his original petition's priority date, since, in the ordinary course, principal and derivative beneficiaries living abroad apply for their visas at the same time and go to the consulate together for back-to-back interviews. Although, as long as immigration law demands some valid sponsor, the process is painstakingly managed. By contrast, the derivative beneficiaries of F3 and F4 petitions, such as the respondents here, lacked any qualifying relationships with a citizen or LPR during the period they waited in line, and could not qualify for automatic conversion. Even assuming, arguendo, that the Government is under an obligation to do so, the Government cannot assume away

2013_12-815

https://www.oyez.org/cases/2013/12-815

. This case involves two proceedings, one pending in state court, the other in federal court. Each seeks review of an Iowa Utilities Board (IUB or Board) order. And each presents the question whether Windstream Iowa Communications, Inc. (Windstream), a local telecommunications carrier, may impose on Sprint Communications, Inc. (Sprint), intrastate access charges for telephone calls transported via the Internet. Federal-court jurisdiction over controversies of this kind was confirmed in Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635 (2002) . Invoking Younger v. Harris, 401 U. S. 37 (1971) , the U. S. District Court for the Southern District of Iowa abstained from adjudicating Sprint’s complaint in deference to the parallel state-court proceeding, and the Court of Appeals for the Eighth Circuit affirmed the District Court’s abstention decision. We reverse the judgment of the Court of Appeals. In the main, federal courts are obliged to decide cases within the scope of federal jurisdiction. Abstention is not in order simply because a pending state-court proceeding involves the same subject matter. New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 373 (1989) (NOPSI) (“[T]here is no doctrine that . . . pendency of state judicial proceedings excludes the federal courts.”). This Court has recognized, however, certain instances in which the prospect of undue interference with state proceedings counsels against federal relief. See id., at 368. Younger exemplifies one class of cases in which federal-court abstention is required: When there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution. This Court has extended Younger abstention to particular state civil proceedings that are akin to criminal prosecutions, see Huffman v. Pursue, Ltd., 420 U. S. 592 (1975) , or that implicate a State’s interest in enforcing the orders and judgments of its courts, see Pennzoil Co. v. Texaco Inc., 481 U. S. 1 (1987) . We have cautioned, however, that federal courts ordinarily should entertain and resolve on the merits an action within the scope of a jurisdictional grant, and should not “refus[e] to decide a case in deference to the States.” NOPSI, 491 U. S., at 368. Circumstances fitting within the Younger doctrine, we have stressed, are “exceptional”; they include, as catalogued in NOPSI, “state criminal prosecutions,” “civil enforcement proceedings,” and “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Id., at 367–368. Because this case presents none of the circumstances the Court has ranked as “exceptional,” the general rule governs: “[T]he pendency of an action in [a] state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976) (quoting McClellan v. Carland, 217 U. S. 268, 282 (1910) ). I Sprint, a national telecommunications service provider, has long paid intercarrier access fees to the Iowa communications company Windstream (formerly Iowa Telecom) for certain long distance calls placed by Sprint customers to Windstream’s in-state customers. In 2009, however, Sprint decided to withhold payment for a subset of those calls, classified as Voice over Internet Protocol (VoIP), after concluding that the Telecommunications Act of 1996 preempted intrastate regulation of VoIP traffic. [ 1 ] In response, Windstream threatened to block all calls to and from Sprint customers. Sprint filed a complaint against Windstream with the IUB asking the Board to enjoin Windstream from discontinuing service to Sprint. In Sprint’s view, Iowa law entitled it to withhold payment while it contested the access charges and prohibited Windstream from carrying out its disconnection threat. In answer to Sprint’s complaint, Windstream retracted its threat to discontinue serving Sprint, and Sprint moved, successfully, to withdraw its complaint. Because the conflict between Sprint and Windstream over VoIP calls was “likely to recur,” however, the IUB decided to continue the proceedings to resolve the underlying legal question, i.e., whether VoIP calls are subject to intrastate regulation. Order in Sprint Communications Co. v. Iowa Telecommunications Servs., Inc., No. FCU–2010–0001 (IUB, Feb. 1, 2010), p. 6 (IUB Order). The question retained by the IUB, Sprint argued, was governed by federal law, and was not within the IUB’s adjudicative jurisdiction. The IUB disagreed, ruling that the intrastate fees applied to VoIP calls. [ 2 ] Seeking to overturn the Board’s ruling, Sprint commenced two lawsuits. First, Sprint sued the members of the IUB (respondents here) [ 3 ] in their official capacities in the United States District Court for the Southern District of Iowa. In its federal-court complaint, Sprint sought a declaration that the Telecommunications Act of 1996 preempted the IUB’s decision; as relief, Sprint requested an injunction against enforcement of the IUB’s order. Second, Sprint petitioned for review of the IUB’s order in Iowa state court. The state petition reiterated the preemption argument Sprint made in its federal-court complaint; in addition, Sprint asserted state law and procedural due process claims. Because Eighth Circuit precedent effectively required a plaintiff to exhaust state remedies before proceeding to federal court, see Alleghany Corp. v. McCartney, 896 F. 2d 1138 (1990), Sprint urges that it filed the state suit as a protective measure. Failing to do so, Sprint explains, risked losing the opportunity to obtain any review, federal or state, should the federal court decide to abstain after the expiration of the Iowa statute of limitations. See Brief for Petitioner 7–8. [ 4 ] As Sprint anticipated, the IUB filed a motion asking the Federal District Court to abstain in light of the state suit, citing Younger v. Harris, 401 U. S. 37 (1971) . The District Court granted the IUB’s motion and dismissed the suit. The IUB’s decision, and the pending state-court review of it, the District Court said, composed one “uninterruptible process” implicating important state interests. On that ground, the court ruled, Younger abstention was in order. Sprint Communications Co. v. Berntsen, No. 4:11–cv–00183–JAJ (SD Iowa, Aug. 1, 2011), App. to Pet. for Cert. 24a. For the most part, the Eighth Circuit agreed with the District Court’s judgment. The Court of Appeals rejected the argument, accepted by several of its sister courts, that Younger abstention is appropriate only when the parallel state proceedings are “coercive,” rather than “remedial,” in nature. 690 F. 3d 864, 868 (2012); cf. Guillemard-Ginorio v. Contreras-Gómez, 585 F. 3d 508, 522 (CA1 2009) (“[P]roceedings must be coercive, and in most cases, state-initiated, in order to warrant abstention.”). Instead, the Eighth Circuit read this Court’s precedent to require Younger abstention whenever “an ongoing state judicial proceeding . . . implicates important state interests, and . . . the state proceedings provide adequate opportunity to raise [federal] challenges.” 690 F. 3d, at 867 (citing Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U. S. 423, 432 (1982) ). Those criteria were satisfied here, the appeals court held, because the ongoing state-court review of the IUB’s decision concerned Iowa’s “important state interest in regulating and enforcing its intrastate utility rates.” 690 F. 3d, at 868. Recognizing the “possibility that the parties [might] return to federal court,” however, the Court of Appeals vacated the judgment dismissing Sprint’s complaint. In lieu of dismissal, the Eighth Circuit remanded the case, instructing the District Court to enter a stay during the pendency of the state-court action. Id., at 869. We granted certiorari to decide whether, consistent with our delineation of cases encompassed by the Younger doctrine, abstention was appropriate here. 569 U. S. ___ (2013). [ 5 ] II A Neither party has questioned the District Court’s jurisdiction to decide whether federal law preempted the IUB’s decision, and rightly so. In Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635 (2002) , we reviewed a similar federal-court challenge to a state administrative adjudication. In that case, as here, the party seeking federal-court review of a state agency’s decision urged that the Telecommunications Act of 1996 preempted the state action. We had “no doubt that federal courts ha[d federal question] jurisdiction under [28 U. S. C.] §1331 to entertain such a suit,” id., at 642, and nothing in the Telecommunications Act detracted from that conclusion, see id., at 643. Federal courts, it was early and famously said, have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821). Jurisdiction existing, this Court has cautioned, a federal court’s “obligation” to hear and decide a case is “virtually unflagging.” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976) . Parallel state-court proceedings do not detract from that obligation. See ibid. In Younger, we recognized a “far-from-novel” exception to this general rule. New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 364 (1989) (NOPSI). The plaintiff in Younger sought federal-court adjudication of the constitutionality of the California Criminal Syndicalism Act. Requesting an injunction against the Act’s enforcement, the federal-court plaintiff was at the time the defendant in a pending state criminal prosecution under the Act. In those circumstances, we said, the federal court should decline to enjoin the prosecution, absent bad faith, harassment, or a patently invalid state statute. See 401 U. S., at 53–54. Abstention was in order, we explained, under “the basic doctrine of equity jurisprudence that courts of equity should not act . . . to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparably injury if denied equitable relief.” Id., at 43–44. “[R]estraining equity jurisdiction within narrow limits,” the Court observed, would “prevent erosion of the role of the jury and avoid a duplication of legal proceedings and legal sanctions.” Id., at 44. We explained as well that this doctrine was “reinforced” by the notion of “ ‘comity,’ that is, a proper respect for state functions.” Ibid. We have since applied Younger to bar federal relief in certain civil actions. Huffman v. Pursue, Ltd., 420 U. S. 592 (1975) , is the pathmarking decision. There, Ohio officials brought a civil action in state court to abate the showing of obscene movies in Pursue’s theater. Because the State was a party and the proceeding was “in aid of and closely related to [the State’s] criminal statutes,” the Court held Younger abstention appropriate. Id., at 604. More recently, in NOPSI, 491 U. S., at 368, the Court had occasion to review and restate our Younger jurisprudence. NOPSI addressed and rejected an argument that a federal court should refuse to exercise jurisdiction to review a state council’s ratemaking decision. “[O]nly ex- ceptional circumstances,” we reaffirmed, “justify a fed- eral court’s refusal to decide a case in deference to the States.” Ibid. Those “exceptional circumstances” exist, the Court determined after surveying prior decisions, in three types of proceedings. First, Younger precluded federal intrusion into ongoing state criminal prosecutions. See ibid. Second, certain “civil enforcement proceedings” warranted abstention. Ibid. (citing, e.g., Huffman, 420 U. S., at 604). Finally, federal courts refrained from interfering with pending “civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions.” 491 U. S., at 368 (citing Juidice v. Vail, 430 U. S. 327 , n. 12 (1977), and Pennzoil Co. v. Texaco Inc., 481 U. S. 1, 13 (1987) ). We have not applied Younger outside these three “exceptional” categories, and today hold, in accord with NOPSI, that they define Younger’s scope. B The IUB does not assert that the Iowa state court’s review of the Board decision, considered alone, implicates Younger. Rather, the initial administrative proceeding justifies staying any action in federal court, the IUB contends, until the state review process has concluded. The same argument was advanced in NOPSI. 491 U. S., at 368. We will assume without deciding, as the Court did in NOPSI, that an administrative adjudication and the subsequent state court’s review of it count as a “unitary process” for Younger purposes. Id., at 369. The question remains, however, whether the initial IUB proceeding is of the “sort . . . entitled to Younger treatment.” Ibid. The IUB proceeding, we conclude, does not fall within any of the three exceptional categories described in NOPSI and therefore does not trigger Younger abstention. The first and third categories plainly do not accommodate the IUB’s proceeding. That proceeding was civil, not criminal in character, and it did not touch on a state court’s ability to perform its judicial function. Cf. Juidice, 430 U. S., at 336, n. 12 (civil contempt order); Pennzoil, 481 U. S., at 13 (requirement for posting bond pending appeal). Nor does the IUB’s order rank as an act of civil enforcement of the kind to which Younger has been extended. Our decisions applying Younger to instances of civil enforcement have generally concerned state proceedings “akin to a criminal prosecution” in “important respects.” Huffman, 420 U. S., at 604. See also Middlesex, 457 U. S., at 432 (Younger abstention appropriate where “noncriminal proceedings bear a close relationship to proceedings criminal in nature”). Such enforcement actions are characteristically initiated to sanction the federal plaintiff, i.e., the party challenging the state action, for some wrongful act. See, e.g., Middlesex, 457 U. S., at 433–434 (state-initiated disciplinary proceedings against lawyer for violation of state ethics rules). In cases of this genre, a state actor is routinely a party to the state proceeding and often initiates the action. See, e.g., Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U. S. 619 (1986) (state-initiated administrative proceedings to enforce state civil rights laws); Moore v. Sims, 442 U. S. 415 –420 (1979) (state-initiated proceeding to gain custody of children allegedly abused by their parents); Trainor v. Hernandez, 431 U. S. 434, 444 (1977) (civil proceeding “brought by the State in its sovereign capacity” to recover welfare payments defendants had allegedly obtained by fraud); Huffman, 420 U. S., at 598 (state-initiated proceeding to enforce obscenity laws). Investigations are commonly involved, often culminating in the filing of a formal complaint or charges. See, e.g., Dayton, 477 U. S., at 624 (noting preliminary investigation and complaint); Middlesex, 457 U. S., at 433 (same). The IUB proceeding does not resemble the state enforcement actions this Court has found appropriate for Younger abstention. It is not “akin to a criminal prosecution.” Huffman, 420 U. S., at 604. Nor was it initiated by “the State in its sovereign capacity.” Trainor, 431 U. S., at 444. A private corporation, Sprint, initiated the action. No state authority conducted an investigation into Sprint’s activities, and no state actor lodged a formal complaint against Sprint. In its brief, the IUB emphasizes Sprint’s decision to withdraw the complaint that commenced proceedings before the Board. At that point, the IUB argues, Sprint was no longer a willing participant, and the proceedings became, essentially, a civil enforcement action. See Brief for Respondents 31. [ 6 ] The IUB’s adjudicative authority, however, was invoked to settle a civil dispute between two private parties, not to sanction Sprint for commission of a wrongful act. Although Sprint withdrew its complaint, administrative efficiency, not misconduct by Sprint, prompted the IUB to answer the underlying federal question. By determining the intercarrier compensation regime applicable to VoIP calls, the IUB sought to avoid renewed litigation of the parties’ dispute. Because the underlying legal question remained unsettled, the Board observed, the controversy was “likely to recur.” IUB Order 6. Nothing here suggests that the IUB proceeding was “more akin to a criminal prosecution than are most civil cases.” Huffman, 420 U. S., at 604. In holding that abstention was the proper course, the Eighth Circuit relied heavily on this Court’s decision in Middlesex. Younger abstention was warranted, the Court of Appeals read Middlesex to say, whenever three conditions are met: There is (1) “an ongoing state judicial proceeding, which (2) implicates important state interests, and (3) . . . provide[s] an adequate opportunity to raise [federal] challenges.” 690 F. 3d, at 867 (citing Middlesex, 457 U. S., at 432). Before this Court, the IUB has endorsed the Eighth Circuit’s approach. Brief for Respondents 13. The Court of Appeals and the IUB attribute to this Court’s decision in Middlesex extraordinary breadth. We invoked Younger in Middlesex to bar a federal court from entertaining a lawyer’s challenge to a New Jersey state ethics committee’s pending investigation of the lawyer. Unlike the IUB proceeding here, the state ethics committee’s hearing in Middlesex was indeed “akin to a criminal proceeding.” As we noted, an investigation and formal complaint preceded the hearing, an agency of the State’s Supreme Court initiated the hearing, and the purpose of the hearing was to determine whether the lawyer should be disciplined for his failure to meet the State’s standards of professional conduct. 457 U. S., at 433–435. See also id., at 438 (Brennan, J., concurring in judgment) (noting the “quasi-criminal nature of bar disciplinary proceedings”). The three Middlesex conditions recited above were not dispositive; they were, instead, additional factors appropriately considered by the federal court before invoking Younger. Divorced from their quasi-criminal context, the three Middlesex conditions would extend Younger to virtually all parallel state and federal proceedings, at least where a party could identify a plausibly important state interest. See Tr. of Oral Arg. 35–36. That result is irreconcilable with our dominant instruction that, even in the presence of parallel state proceedings, abstention from the exercise of federal jurisdiction is the “exception, not the rule.” Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 236 (1984) (quoting Colorado River, 424 U. S., at 813). In short, to guide other federal courts, we today clarify and affirm that Younger extends to the three “exceptional circumstances” identified in NOPSI, but no further. * * * For the reasons stated, the judgment of the United States Court of Appeals for the Eighth Circuit is Reversed. Notes 1 The Federal Communications Commission has yet to provide its view on whether the Telecommunications Act categorically preempts intrastate access charges for VoIP calls. See In re Connect America Fund, 26 FCC Rcd. 17663, 18002, ¶934 (2011) (reserving the ques-tion whether all VoIP calls “must be subject exclusively to federal regulation”). 2 At the conclusion of the IUB proceedings, Sprint paid Windstream all contested fees. 3 For convenience, we refer to respondents collectively as the IUB. 4 Since we granted certiorari, the Iowa state court issued an opinion rejecting Sprint’s preemption claim on the merits. Sprint Communications Co. v. Iowa Utils. Bd., No. CV–8638, App. to Joint Supp. Brief 20a–36a (Iowa Dist. Ct., Sept. 16, 2013). The Iowa court decision does not, in the parties’ view, moot this case, see Joint Supp. Brief 1, and we agree. Because Sprint intends to appeal the state-court decision, the “controversy . . . remains live.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., . 5 The IUB agrees with Sprint that our decision in Burford v. Sun Oil Co., , cannot independently sustain the Eighth Circuit’s abstention analysis. See Brief for Respondents 9; cf. New Orleans Public Service, Inc. v. Council of City of New Orleans, . 6 To determine whether a state proceeding is an enforcement action under Younger, several Courts of Appeals, as noted, see supra, at 5, inquire whether the underlying state proceeding is “coercive” rather than “remedial.” See, e.g., Devlin v. Kalm, 594 F. 3d 893, 895 (CA6 2010). Though we referenced this dichotomy once in a footnote, see Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., , n. 2 (1986), we do not find the inquiry necessary or inevitably helpful, given the susceptibility of the designations to manipulation.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SPRINT COMMUNICATIONS, INC. v. JACOBS et al. certiorari to the united states court of appeals for the eighth circuit No. 12–815. Argued November 5, 2013—Decided December 10, 2013 Sprint Communications, Inc. (Sprint), a national telecommunications service provider, withheld payment of intercarrier access fees imposed by Windstream Iowa Communications, Inc. (Windstream), a local telecommunications carrier, for long distance Voice over Internet Protocol (VoIP) calls, after concluding that the Telecommunications Act of 1996 preempted intrastate regulation of VoIP traffic. Windstream responded by threatening to block all Sprint customer calls, which led Sprint to ask the Iowa Utilities Board (IUB) to enjoin Windstream from discontinuing service to Sprint. Windstream retracted its threat, and Sprint moved to withdraw its complaint. Concerned that the dispute would recur, the IUB continued the proceedings in order to resolve the question whether VoIP calls are subject to intrastate regulation. Rejecting Sprint’s argument that this question was governed by federal law, the IUB ruled that intrastate fees applied to VoIP calls. Sprint sued respondents, IUB members (collectively IUB), in Federal District Court, seeking a declaration that the Telecommunications Act of 1996 preempted the IUB’s decision. As relief, Sprint sought an injunction against enforcement of the IUB’s order. Sprint also sought review of the IUB’s order in Iowa state court, reiterating the preemption argument made in Sprint’s federal-court complaint and asserting several other claims. Invoking Younger v. Harris, 401 U.S. 37, the Federal District Court abstained from adjudicating Sprint’s complaint in deference to the parallel state-court proceeding. The Eighth Circuit affirmed the District Court’s abstention decision, concluding that Younger abstention was required because the ongoing state-court review concerned Iowa’s important interest in regulating and enforcing state utility rates. Held: This case does not fall within any of the three classes of exceptional cases for which Younger abstention is appropriate. . (a) The District Court had jurisdiction to decide whether federal law preempted the IUB’s decision, see Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 642, and thus had a “virtually unflagging obligation” to hear and decide the case, Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817. In Younger, this Court recognized an exception to that obligation for cases in which there is a parallel, pending state criminal proceeding. This Court has extended Younger abstention to particular state civil proceedings that are akin to criminal prosecutions, see Huffman v. Pursue, Ltd., 420 U.S. 592, or that implicate a State’s interest in enforcing the orders and judgments of its courts, see Pennzoil Co. v. Texaco Inc., 481 U.S. 1, but has reaffirmed that “only exceptional circumstances justify a federal court’s refusal to decide a case in deference to the States,” New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (NOPSI). NOPSI identified three such “exceptional circumstances.” First, Younger precludes federal intrusion into ongoing state criminal prosecutions. See 491 U. S., at 368. Second, certain “civil enforcement proceedings” warrant Younger abstention. Ibid. Finally, federal courts should refrain from interfering with pending “civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Ibid. This Court has not applied Younger outside these three “exceptional” categories, and rules, in accord with NOPSI, that they define Younger’s scope. . (b) The initial IUB proceeding does not fall within any of NOPSI’s three exceptional categories and therefore does not trigger Younger abstention. The first and third categories plainly do not accommodate the IUB’s proceeding, which was civil, not criminal in character, and which did not touch on a state court’s ability to perform its judicial function. Nor is the IUB’s order an act of civil enforcement of the kind to which Younger has been extended. The IUB proceeding is not “akin to a criminal prosecution.” Huffman, 420 U. S., at 604. Nor was it initiated by “the State in its sovereign capacity,” Trainor v. Hernandez, 431 U.S. 434, 444, to sanction Sprint for some wrongful act, see, e.g., Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423, 433–434. Rather, the action was initiated by Sprint, a private corporation. No state authority conducted an investigation into Sprint’s activities or lodged a formal complaint against Sprint. Once Sprint withdrew the complaint that commenced administrative proceedings, the IUB argues, those proceedings became, essentially, a civil enforcement action. However, the IUB’s adjudicative authority was invoked to settle a civil dispute between two private parties, not to sanction Sprint for a wrongful act. In holding that abstention was the proper course, the Eighth Circuit misinterpreted this Court’s decision in Middlesex to mean that Younger abstention is warranted whenever there is (1) “an ongoing state judicial proceeding, which (2) implicates important state interests, and (3) . . . provide[s] an adequate opportunity to raise [federal] challenges.” In Middlesex, the Court invoked Younger to bar a federal court from entertaining a lawyer’s challenge to a state ethics committee’s pending investigation of the lawyer. Unlike the IUB’s proceeding, however, the state ethics committee’s hearing in Middlesex was plainly “akin to a criminal proceeding”: An investigation and formal complaint preceded the hearing, an agency of the State’s Supreme Court initiated the hearing, and the hearing’s purpose was to determine whether the lawyer should be disciplined for failing to meet the State’s professional conduct standards. 457 U. S., at 433–435. The three Middlesex conditions invoked by the Court of Appeals were therefore not dispositive; they were, instead, additional factors appropriately considered by the federal court before invoking Younger. Younger extends to the three “exceptional circumstances” identified in NOPSI, but no further. . 690 F.3d 864, reversed. Ginsburg, J., delivered the opinion for a unanimous Court.

U.S. District Court for the Southern District of Iowa abstained from adjudicating respondent Sprint Communications Co. (Sprint) complaint challenging Windstream Iowa Communications, Inc. (Windstream), a local telecommunications carrier, on the ground that the Telecommunications Act of 1996 preempted intrastate regulation of VoIP traffic, and thus prohibited Windstream from serving calls to Windstream that were subject to the Iowa Voice over Internet Protocol (VoIP) regulation. Seeking to overturn the ruling, Sprint commenced two lawsuits. First, it sued the members of the Iowa Urban Utilities Board (IUB) in their official capacities in the District Court. In its federal-court complaint, the IUB argued that Younger v. Harris, 401 U. S. 37 (1971), was governed by federal law, and was not within its adjudicative jurisdiction. Second, it petitioned for review in Iowa state court, asserting state law and procedural due process claims. The IUB filed a motion asking the Federal District Court to abstain in light of the state suit, citing Younger. The District Court granted the motion and dismissed the suit, holding that Younger abstention is appropriate only when parallel state proceedings are coercive, rather than "remedial, in nature, in order to warrant abstention. The Court of Appeals affirmed. Held: Younger extends to the three exceptional circumstances identified in NOPSI, but no further. . 690 F. 3d 864, reversed. THE CHIEF JUSTICE concluded that: 1. Abstention is not in order simply because a pending state-court proceeding involves the same subject matter. Although federal courts ordinarily should entertain and resolve on the merits an action within the scope of a jurisdictional grant, and should not "refus[e] to decide a case in deference to the States...." New Orleans Public Service Inc. v. Council of City of New Orleans, 350, 373 (NOPSI), distinguished. However, when there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution. Because this case presents none of the circumstances the Court has ranked as exceptional, the general rule governs that, whenever an action in a state court implicates important state interests, and the state proceedings provide adequate opportunity to raise federal challenges, abstention from the exercise of federal jurisdiction is the exception, not the rule. Pp. 468. 2. The initial IUB proceeding is of the sort entitled to Younger treatment. The first and third categories plainly do not accommodate the proceeding. That proceeding was civil, not criminal in character, and did not touch on a court court's ability to perform its judicial function. Nor does the order rank as an act of civil enforcement of the kind to which Younger has been extended. Moreover, the order does not rank as a civil enforcement order. Divorced from their quasi-criminal context, the three Middlesex conditions would extend Younger to virtually all parallel state and federal proceedings, at least where a party could identify a plausibly important state interest, and that result is irreconcilable with this Court's dominant instruction that, even in the presence of parallel state proceeding abstention is the exception to the rule, and this Court has since applied Younger to bar federal relief in certain civil actions, Huffman v. Pursue, Ltd., 420 U. S. 592 (Huffman), Huffman 604, and other cases involving state criminal prosecutions, and civil enforcement proceedings. It is not analogous to a criminal prosecution; nor was it initiated by the State in its sovereign capacity, Trainor, 431 U.S., at 444. A private corporation, Sprint, initiated the action. No state authority conducted an investigation into Sprint's activities, and no state actor lodged a formal complaint against Sprint. Respondents collectively referred to collectively as respondents collectively, collectively. App. to Joint Supp. Brief 1, which does not moot this case, does not, in the parties' view, moot Burford v. Sun Oil Co., (CA6 2010). Because, because respondent intends to appeal the state court decision, the controversy remains live. Furthermore, since respondent Exxon Mobil Corp. v. Saudi Basic Industries Corp.,, the "controversy... remains live." Exxon Mobil agrees that Burford, supra, at 890, cannot independently sustain the Eighth Circuit's abstention analysis. See, e.g., Devlin v. Kalm, 594 F.3d 893, 895. In addition, to determine whether the underlying state proceeding is an enforcement action under Younger, several Courts of Appeals, as noted in 5, inquire whether, as here, the underlying proceeding is coercive rather than remedial, and to inquire whether the State proceeding is actually motivated by the necessary manipulation of the designations necessary to the manipulation or the manipulation

2013_13-193

https://www.oyez.org/cases/2013/13-193

. Petitioners in this case seek to challenge an Ohio statute that prohibits certain “false statements” during the course of a political campaign. The question in this caseis whether their preenforcement challenge to that law is justiciable—and in particular, whether they have alleged a sufficiently imminent injury for the purposes of Article III. We conclude that they have. I The Ohio statute at issue prohibits certain “false statement[s]” “during the course of any campaign for nomination or election to public office or office of a political party.” Ohio Rev. Code Ann. §3517.21(B) (Lexis 2013). As relevant here, the statute makes it a crime for any person to “[m]ake a false statement concerning the voting record of a candidate or public official,” §3517.21(B)(9), or to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not,” §3517.21(B)(10).[1] “[A]ny person” acting on personal knowledge may file a complaint with the Ohio Elections Commission (or Commission) alleging a violation of the false statement statute. §3517.153(A) (Lexis Supp. 2014). If filed within 60 days of a primary election or 90 days of a general election, the complaint is referred to a panel of at least three Commission members. §§3517.156(A), (B)(1) (Lexis 2013). The panel must then hold an expedited hearing, generally within two business days, §3517.156(B)(1), to determine whether there is probable cause to believe the alleged violation occurred, §3517.156(C). Upon a finding of probable cause, the full Commission must, within 10 days, hold a hearing on the complaint. §3517.156(C)(2); see also Ohio Admin. Code §3517–1–10(E) (2008). The statute authorizes the full Commission to subpoena witnesses and compel production of documents. Ohio Rev. Code Ann. §3517.153(B) (Lexis Supp. 2014). At the full hearing, the parties may make opening and closing statements and present evidence. Ohio Admin. Code §§3517–1–11(B)(2)(c), (d), (g). If the Commission determines by “clear and convincing evidence” that a party has violated the false statement law, the Commission “shall” refer the matter to the relevant county prosecutor. Ohio Rev. Code Ann. §§3517.155(D)(1)–(2) (Lexis Supp. 2014). Alternatively, the Commission’s regulations state that it may simply issue a reprimand. See Ohio Admin. Code §3517–1–14(D). Violation of the false statement statute is a first-degree misdemeanor punishable by up to six months of imprisonment, a fine up to $5,000, or both. Ohio Rev. Code Ann. §§3599.40 (Lexis 2013), 3517.992(V) (Lexis Supp. 2014). A second conviction under the false statement statute is a fourth-degree felony that carries a mandatory penalty of disfranchisement. §3599.39. II Petitioner Susan B. Anthony List (SBA) is a “pro-life advocacy organization.” 525 Fed. Appx. 415, 416 (CA6 2013). During the 2010 election cycle, SBA publicly criticized various Members of Congress who voted for the Patient Protection and Affordable Care Act (ACA). In particular, it issued a press release announcing its plan to “educat[e] voters that their representative voted for a health care bill that includes taxpayer-funded abortion.” App. 49–50. The press release listed then-Congressman Steve Driehaus, a respondent here, who voted for the ACA. SBA also sought to display a billboard in Driehaus’ district condemning that vote. The planned billboard would have read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Id., at 37. The advertising company that owned the billboard space refused to display that message, however, after Driehaus’ counsel threatened legal action. On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission alleging, as relevant here, that SBA had violated §§3517.21(B)(9) and (10) by falsely stating that he had voted for “taxpayer-funded abortion.”[2] Because Driehaus filed his complaint 29 days before the general election, a Commission panel held an expedited hearing. On October 14, 2010, the panel voted 2 to 1 to find probable cause that a violation had been committed. The full Commission set a hearing date for 10 business days later, and the parties commenced discovery. Driehaus noticed depositions of three SBA employees as well as individuals affiliated with similar advocacy groups. He also issued discovery requests for all evidence that SBA would rely on at the Commission hearing, as well as SBA’s communications with allied organizations, political party committees, and Members of Congress and their staffs. On October 18, 2010—after the panel’s probable-cause determination, but before the scheduled Commission hearing—SBA filed suit in Federal District Court, seek-ing declaratory and injunctive relief on the ground that §§3517.21(B)(9) and (10) violate the First and Fourteenth Amendments of the United States Constitution. The District Court stayed the action under Younger v. Harris, 401 U. S. 37 (1971) , pending completion of the Commission proceedings. The Sixth Circuit denied SBA’s motion for an injunction pending appeal. Driehaus and SBA eventually agreed to postpone the full Commission hearing until after the election. When Driehaus lost the election in November 2010, he moved to withdraw his complaint against SBA. The Commission granted the motion with SBA’s consent. Once the Commission proceedings were terminated, the District Court lifted the stay and SBA amended its complaint. As relevant here, the amended complaint alleged that Ohio Rev. Code Ann. §§3517.21(B)(9) and (10) are unconstitutional both facially and as applied. Specifically, the complaint alleged that SBA’s speech about Driehaus had been chilled; that SBA “intends to engage in substantially similar activity in the future”; and that it “face[d] the prospect of its speech and associational rights again being chilled and burdened,” because “[a]ny complainant can hale [it] before the [Commission], forcing it to expend time and resources defending itself.” App. 121–122. The District Court consolidated SBA’s suit with a separate suit brought by petitioner Coalition Opposed to Ad-ditional Spending and Taxes (COAST), an advocacy orga-nization that also alleged that the same Ohio falsestatement provisions are unconstitutional both facially and as applied.[3] According to its amended complaint, COAST intended to disseminate a mass e-mail and other materials criticizing Driehaus’ vote for the ACA as a vote “to fund abortions with tax dollars,” but refrained from doing so because of the Commission proceedings against SBA. Id., at 146, 148, 162. COAST further alleged that it “desires to make the same or similar statements about other federal candidates who voted for” the ACA, but that fear “of finding itself subject to the same fate” as SBA has deterred it from doing so. Id., at 149, 157.[4] The District Court dismissed both suits as non-justiciable, concluding that neither suit presented a sufficiently concrete injury for purposes of standing or ripeness. The Sixth Circuit affirmed on ripeness grounds. 525 Fed. Appx. 415. The Court of Appeals analyzed three factors to assess whether the case was ripe for review: (1) the likelihood that the alleged harm would come to pass; (2) whether the factual record was sufficiently developed; and (3) the hardship to the parties if judicial relief were denied. Regarding the first factor, the Sixth Circuit concluded that SBA’s prior injuries—the probable-cause determination and the billboard rejection—“do not help it show an imminent threat of future prosecution,” particularly where “the Commission never found that SBA . . . violated Ohio’s false-statement law.” Id., at 420. The court further reasoned that it was speculative whether any person would file a complaint with the Commission in the future, in part because Driehaus took a 2-year assignment with the Peace Corps in Africa after losing the election. Finally, the court noted that SBA has not alleged that “it plans to lie or recklessly disregard the veracity of its speech” in the future, but rather maintains that the statements it intends to make are factually true. Id., at 422. As for the remaining factors, the court concluded that the factual record was insufficiently developed with respect to the content of SBA’s future speech, and that withholding judicial relief would not result in undue hardship because, in the time period leading up to the 2010 election, SBA continued to communicate its message even after Commission proceedings were initiated. The Sixth Circuit therefore determined that SBA’s suit was not ripe for review, and that its analysis as to SBA compelled the same conclusion with respect to COAST. We granted certiorari, 571 U. S. ___ (2014), and now reverse. III A Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U. S. Const., Art. III, §2. The doctrine of standing gives meaning to these constitutional limits by “identify[ing] those disputes which are appropriately resolved through the judicial process.”[5] Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) . “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U. S. ___, ___, (2013) (slip op., at 9). To establish Article III standing, a plaintiff must show (1) an “injury in fact,” (2) a sufficient “causal connection between the injuryand the conduct complained of,” and (3) a “likel[ihood]” that the injury “will be redressed by a favorable decision.” Lujan, supra, at 560–561 (internal quotation marksomitted). This case concerns the injury-in-fact requirement, which helps to ensure that the plaintiff has a “personal stake in the outcome of the controversy.” Warth v. Seldin, 422 U. S. 490, 498 (1975) (internal quotation marks omitted). An injury sufficient to satisfy Article III must be “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan, supra, at 560 (some internal question marks omitted). An allegation of future injury may suffice if the threatened injury is “certainly impending,” or there is a “ ‘substantial risk’ that the harm will occur.” Clapper, 568 U. S., at ___, ___, n. 5 (slip op., at 10, 15, n. 5) (emphasis deleted and internal quotation marks omitted). “ ‘ The party invoking federal jurisdiction bears the burden of establishing’ standing.” Id., at ___ (slip op., at 12). “[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, supra, at 561. B One recurring issue in our cases is determining when the threatened enforcement of a law creates an Article III injury. When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. See Steffel v. Thompson, 415 U. S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”); see also MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118 –129 (2007) (“[W]here threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat”). Instead, we have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979) . Several of our cases illustrate the circumstances under which plaintiffs may bring a preenforcement challenge consistent with Article III. In Steffel, for example, police officers threatened to arrest petitioner and his companion for distributing handbills protesting the Vietnam War. Petitioner left to avoid arrest; his companion remained and was arrested and charged with criminal trespass. Petitioner sought a declaratory judgment that the trespass statute was unconstitutional as applied to him. We determined that petitioner had alleged a credible threat of enforcement: He had been warned to stop handbilling and threatened with prosecution if he disobeyed; he stated his desire to continue handbilling (an activity he claimed was constitutionally protected); and his companion’s prosecution showed that his “concern with arrest” was not “ ‘ chimerical.’ ” 415 U. S., at 459. Under those circumstances, we said, “it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Ibid. In Babbitt, we considered a preenforcement challenge to a statute that made it an unfair labor practice to encourage consumers to boycott an “agricultural product . . . by the use of dishonest, untruthful and deceptive publicity.’ ” 442 U. S., at 301. The plaintiffs contended that the law “unconstitutionally penalize[d] inaccuracies inadvertently uttered in the course of consumer appeals.” Ibid. Building on Steffel, we explained that a plaintiff could bring a preenforcement suit when he “has alleged an intention to engage in a course of conduct arguably af-fected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbit, supra, at 298. We found those circumstances present in Babbitt. In that case, the law “on its face proscribe[d] dishonest, untruthful, and deceptive publicity.” 442 U. S., at 302. The plaintiffs had “actively engaged in consumer publicity campaigns in the past” and alleged “an intention to continue” those campaigns in the future. Id., at 301. And although they did not “plan to propagate untruths,” they argued that “ ‘ erroneous statement is inevitable in free debate.’ ” Ibid. We concluded that the plaintiffs’ fear of prosecution was not “imaginary or wholly speculative,” and that their challenge to the consumer publicity provision presented an Article III case or controversy. Id., at 302. Two other cases bear mention. In Virginia v. American Booksellers Assn. Inc., 484 U. S. 383 (1988) , we held that booksellers could seek preenforcement review of a law making it a crime to “ ‘knowingly display for commercial purpose’ ” material that is “ ‘harmful to juveniles’ ” as defined by the statute. Id., at 386. At trial, the booksellers introduced 16 books they believed were covered by the statute and testified that costly compliance measures would be necessary to avoid prosecution for displaying such books. Just as in Babbitt and Steffel, we determined that the “pre-enforcement nature” of the suit was not “troubl[ing]” because the plaintiffs had “alleged an actual and well-founded fear that the law will be enforced against them.” 484 U. S., at 393. Finally, in Holder v. Humanitarian Law Project, 561 U. S. 1 (2010) , we considered a preenforcement challenge to a law that criminalized “ ‘ knowingly provid[ing] mate-rial support or resources to a foreign terrorist organization.’ ” Id., at 8. The plaintiffs claimed that they had provided support to groups designated as terrorist organizations prior to the law’s enactment and would provide similar support in the future. The Government had charged 150 persons with violating the law and declined to disavow prosecution if the plaintiffs resumed their support of the designated organizations. We held that the claims were justiciable: The plaintiffs faced a “ ‘credible threat’ ” of enforcement and “ ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’ ” Id., at 15. IV Here, SBA and COAST contend that the threat of enforcement of the false statement statute amounts to an Article III injury in fact. We agree: Petitioners have alleged a credible threat of enforcement. See Babbitt, 442 U. S., at 298. A First, petitioners have alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest.” Ibid. Both petitioners have pleaded specific statements they intend to make in future election cycles. SBA has already stated that representatives who voted for the ACA supported “taxpayer-funded abortion,” and it has alleged an “inten[t] to engage in substantially similar activity in the future.” App. 49–50, 122. See also Humanitarian Law Project, supra, at 15–16 (observing that plaintiffs had previously provided support to groups designated as terrorist organizations and alleged they “would provide similar support [to the same terrorist organizations] again if the statute’s allegedly unconstitutional bar were lifted”). COAST has alleged that it previously intended to disseminate materials criticizing a vote for the ACA as a vote “to fund abortions with tax dollars,” and that it “desires to make the same or similar statements about other federal candidates who voted for [the ACA].” App. 146, 149, 162. Because petitioners’ intended future conduct concerns political speech, it is certainly “affected with a constitutional interest.” Babbitt, supra, at 298; see also Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971) (“[T]he constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office”). B Next, petitioners’ intended future conduct is “arguably. . . proscribed by [the] statute” they wish to challenge. Babbitt, supra, at 298. The Ohio false statement law sweeps broadly, see supra, at 1–2, and n. 1., and covers the subject matter of petitioners’ intended speech. Both SBA and COAST have alleged an intent to “[m]ake” statements “concerning the voting record of a candidate or public official,” §3517.21(B)(9), and to “disseminate” statements “concerning a candidate . . . to promote the election, nomination, or defeat of the candidate,” §3517.21(B)(10). And, a Commission panel here already found probable cause to believe that SBA violated the statute when it stated that Driehaus had supported“taxpayer-funded abortion”—the same sort of statement petitioners plan to disseminate in the future. Under these circumstances, we have no difficulty concluding that petitioners’ intended speech is “arguably proscribed” by the law. Respondents incorrectly rely on Golden v. Zwickler, 394 U. S. 103 (1969) . In that case, the plaintiff had previously distributed anonymous leaflets criticizing a particular Congressman who had since left office. Id., at 104–106, and n. 2. The Court dismissed the plaintiff’s challenge to the electoral leafletting ban as nonjusticiable because his “sole concern was literature relating to the Congressman and his record,” and “it was most unlikely that the Congressman would again be a candidate.” Id., at 109 (emphasis added). Under those circumstances, any threat of future prosecution was “wholly conjectural.” Ibid. Here, by contrast, petitioners’ speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. See Reply Brief 4–5 (identifying other elected officials who plan to seek reelection as potential objects of SBA’s criticisms). Because petitioners’ alleged future speech is not directed exclusively at Driehaus, it does not matter whether he “may run for office again.” Brief for Respondents 33 (internal quotation marks omitted). As long as petitioners continue to engage in comparable electoral speech regarding support for the ACA, that speech will remain arguably proscribed by Ohio’s false statement statute. Respondents, echoing the Sixth Circuit, contend that SBA’s fears of enforcement are misplaced because SBA has not said it “ ‘plans to lie or recklessly disregard the veracity of its speech.’ ” Id., at 15 (quoting 525 Fed. Appx., at 422). The Sixth Circuit reasoned that because SBA “can only be liable for making a statement ‘knowing’ it is false,” SBA’s insistence that its speech is factually true “makes the possibility of prosecution for uttering such statements exceedingly slim.” Id., at 422. The Sixth Circuit misses the point. SBA’s insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SBA had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA’s belief in the truth of its allegations. Nothing in this Court’s decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law. See, e.g., Babbitt, 442 U. S., at 301 (case was justiciable even though plaintiffs disavowed any intent to “propagate untruths”). C Finally, the threat of future enforcement of the false statement statute is substantial. Most obviously, there is a history of past enforcement here: SBA was the subject of a complaint in a recent election cycle. We have observed that past enforcement against the same conduct is good evidence that the threat of enforcement is not “ ‘ chimerical.’ ” Steffel, 415 U. S., at 459; cf. Clapper, 568 U. S., at ___ (slip op., at 12) (plaintiffs’ theory of standing was “substantially undermine[d]” by their “fail[ure] to offer any evidence that their communications ha[d] been monitored” under the challenged statute). Here, the threat is even more substantial given that the Commission panel actually found probable cause to believe that SBA’s speech violated the false statement statute. Indeed future complainants may well “invoke the prior probable-cause finding to prove that SBA knowingly lied.” Brief for Petitioners 32. The credibility of that threat is bolstered by the fact that authority to file a complaint with the Commission is not limited to a prosecutor or an agency. Instead, the false statement statute allows “any person” with knowledge of the purported violation to file a complaint. §3517.153(A). Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents. See Brief for Michael DeWine, Attorney General of Ohio, as Amicus Curiae 8 (hereinafter DeWine Brief); see also id., at 6 (noting that “the Commission has no system for weeding out frivolous complaints”). And petitioners, who intend to criticize candidates for political office, are easy targets. Finally, Commission proceedings are not a rare occurrence. Petitioners inform us that the Commission “ ‘handles about 20 to 80 false statement complaints per year,’ ” Brief for Petitioners 46, and respondents do not deny that the Commission frequently fields complaints alleging violations of the false statement statute. Cf. Humani-tarian Law Project, 561 U. S., at 16 (noting that there had been numerous prior prosecutions under the challenged statute). Moreover, respondents have not disavowed enforcement if petitioners make similar statements in the future. See Tr. of Oral Arg. 29–30; see also Humanitarian Law Project, supra, at 16 (“The Government has not argued to this Court that plaintiffs will not be prosecuted if they do what they say they wish to do”). In fact, the specter of enforcement is so substantial that the owner of the billboard refused to display SBA’s message after receiving a letter threatening Commission proceedings. On these facts, the prospect of future enforcement is far from “imaginary or speculative.” Babbitt, supra, at 298. We take the threatened Commission proceedings into account because administrative action, like arrest or prosecution, may give rise to harm sufficient to justify pre-enforcement review. See Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U. S. 619 –626, n. 1 (1986) (“If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not”). The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the “practical effect” of the Ohio false statement scheme is “to permit a private complainant . . . to gain a campaign advantage without ever having to prove the falsity of a statement.” DeWine Brief 7. “[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election.” Id., at 14–15. Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election. And where, as here, a Commission panel issues a preelection probable-cause finding, “such a determination itself may be viewed [by the electorate] as a sanction by the State.” Id., at 13. Although the threat of Commission proceedings is a substantial one, we need not decide whether that threat standing alone gives rise to an Article III injury. The burdensome Commission proceedings here are backed by the additional threat of criminal prosecution. We conclude that the combination of those two threats suffices to create an Article III injury under the circumstances of this case. See Babbitt, supra, at 302, n. 13 (In addition to the threat of criminal sanctions, “the prospect of issuance of an administrative cease-and-desist order or a court-ordered injunction against such prohibited conduct provides substantial additional support for the conclusion that appellees’ challenge . . . is justiciable” (citations omitted)). That conclusion holds true as to both SBA and COAST. Respondents, relying on Younger v. Harris, 401 U. S. 37 (1971) , appear to suggest that COAST lacks standing because it refrained from actually disseminating its planned speech in order to avoid Commission proceedings of its own. See Brief for Respondents 26–27, 34. In Younger, the plaintiff had been indicted for distributing leaflets in violation of the California Criminal Syndicalism Act. When he challenged the constitutionality of the law in federal court, several other plaintiffs intervened, arguing that their own speech was inhibited by Harris’ prosecution. The Court concluded that only the plaintiff had standing because the intervenors “d[id] not claim that they ha[d] ever been threatened with prosecution, that a prosecution [wa]s likely, or even that a prosecution [wa]s remotely possible.” 401 U. S., at 42. That is not this case. Unlike the intervenors in Younger, COAST has alleged an intent to engage in the same speech that was the subject of a prior enforcement proceeding. Also unlike the intervenors in Younger, who had never been threatened with prosecution, COAST has been the subject of Commission proceedings in the past. See, e.g., COAST Candidates PAC v. Ohio Elections Comm’n, 543 Fed. Appx. 490 (CA6 2013). COAST is far more akin to the plaintiff in Steffel, who was not arrested alongside his handbilling companion but was nevertheless threatened with prosecution for similar speech. 415 U. S., at 459. In sum, we find that both SBA and COAST have alleged a credible threat of enforcement. V In concluding that petitioners’ claims were not justiciable, the Sixth Circuit separately considered two other factors: whether the factual record was sufficiently developed, and whether hardship to the parties would result if judicial relief is denied at this stage in the proceedings. 525 Fed. Appx., at 419. Respondents contend that these “prudential ripeness” factors confirm that the claims at issue are nonjusticiable. Brief for Respondents 17. But we have already concluded that petitioners have alleged a sufficient Article III injury. To the extent respondents would have us deem petitioners’ claims nonjusticiable “on grounds that are ‘prudential,’ rather than constitutional,” “[t]hat request is in some tension with our recent reaffirmation of the principle that ‘a federal court’s obligation to hear and decide’ cases within its jurisdiction ‘is virtually unflagging.’ ” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. ___, ___ (2014) (slip op., at 6) (quoting Sprint Communications, Inc. v. Jacobs, 571 U. S. ___, ___ (2013) (slip op., at 6); some internal quotation marks omitted). In any event, we need not resolve the continuing vitality of the prudential ripeness doctrine in this case because the “fitness” and “hardship” factors are easily satisfied here. First, petitioners’ challenge to the Ohio false statement statute presents an issue that is “purely legal, and will not be clarified by further factual development.” Thomas v. Union Carbide Agricultural Products Co., 473 U. S. 568, 581 (1985) . And denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other. * * * Petitioners in this case have demonstrated an injury in fact sufficient for Article III standing. We accordingly reverse the judgment of the United States Court of Appeals for the Sixth Circuit and remand the case for further proceedings consistent with this opinion, including a determination whether the remaining Article III standing requirements are met. It is so ordered.Notes 1 Section 3517.21(B) provides in relevant part: 2 The dispute about the falsity of SBA’s speech concerns two different provisions of the ACA: (1) the subsidy to assist lower income individ-uals in paying insurance premiums, and (2) the direct appropriation of federal money for certain health programs such as community health centers. See Brief for Petitioners 4–5. 3 Petitioners also challenged a related “disclaimer provision,” App. 126–127, 156–157, under Ohio Rev. Code Ann. §3517.20, and COAST raised pre-emption and due process claims. Reply Brief 21, n. 7. Petitioners do not pursue their “disclaimer,” pre-emption, or due process claims before us. We also need not address SBA’s separate challenge to the Commission’s investigatory procedures; petitioners have conceded that the procedures claim stands or falls with the substantive prohibition on false statements. see Tr. of Oral Arg. 19. Finally, the parties agree that petitioners’ as-applied claims “are better read as facial objections to Ohio’s law.” Reply Brief 19. Accordingly, we do not separately address the as-applied claims. 4 SBA named Driehaus, the Commission’s members and its staff attorney (in their official capacities), and the Ohio Secretary of State (in her official capacity) as defendants. COAST named the Commission, the Commission’s members and its staff attorney (in their official capacities), and the Ohio Secretary of State (in her official capacity) as defendants. All named defendants are respondents here. 5 The doctrines of standing and ripeness “originate” from the same Article III limitation. v. , . As the parties acknowledge, the Article III standing and ripeness issues in this case “boil down to the same question.” v. , , n. 8 (2007); see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like v. , , and v. , n. 11 (1979), we use the term “standing” in this opinion.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SUSAN B. ANTHONY LIST et al. v. DRIEHAUS et al. certiorari to the united states court of appeals for the sixth circuit No. 13–193. Argued April 22, 2014—Decided June 16, 2014 Respondent Driehaus, a former Congressman, filed a complaint with the Ohio Elections Commission alleging that petitioner Susan B. Anthony List (SBA) violated an Ohio law that criminalizes certain false statements made during the course of a political campaign. Specifically, Driehaus alleged that SBA violated the law when it stated that his vote for the Patient Protection and Affordable Care Act (ACA) was a vote in favor of “taxpayer funded abortion.” After Driehaus lost his re-election bid, the complaint was dismissed, but SBA continued to pursue a separate suit in Federal District Court challenging the law on First Amendment grounds. Petitioner Coalition Opposed to Additional Spending and Taxes (COAST) also filed a First Amendment challenge to the Ohio law, alleging that it had planned to disseminate materials presenting a similar message but refrained due to the proceedings against SBA. The District Court consolidated the two lawsuits and dismissed them as nonjusticiable, concluding that neither suit presented a sufficiently concrete injury for purposes of standing or ripeness. The Sixth Circuit affirmed on ripeness grounds. Held: Petitioners have alleged a sufficiently imminent injury for Article III purposes. . (a) To establish Article III standing, a plaintiff must show, inter alia, an “injury in fact,” which must be “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560. When challenging a law prior to its enforcement, a plaintiff satisfies the injury-in-fact requirement where he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbitt v. Farm Workers, 442 U.S. 289, 298. . (b) Petitioners have alleged a credible threat of enforcement of the Ohio law. . (1) Petitioners have alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest” by pleading specific statements they intend to make in future election cycles. . (2) Petitioners’ intended future conduct is also “arguably . . . proscribed by [the] statute.” The Ohio false statement statute sweeps broadly, and a panel of the Ohio Elections Commission already found probable cause to believe that SBA violated the law when it made statements similar to those petitioners plan to make in the future. Golden v. Zwickler, 394 U.S. 103, is distinguishable; the threat of prosecution under an electoral leafletting ban in that case was wholly conjectural because the plaintiff’s “sole concern” related to a former Congressman who was unlikely to run for office again. Here, by contrast, petitioners’ speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. Nor does SBA’s insistence that its previous statements were true render its fears of enforcement misplaced. After all, that insistence did not prevent the Commission from finding probable cause for a violation the first time. . (3) Finally, the threat of future enforcement is substantial. There is a history of past enforcement against petitioners. Past enforcement against the same conduct is good evidence that the threat of enforcement is not “ ‘chimerical.’ ” Steffel v. Thompson, 415 U.S. 452, 459. The credibility of that threat is bolstered by the fact that a complaint may be filed with the State Commission by “any person,” Ohio Rev. Code Ann. §3517.153(A), not just a prosecutor or agency. The threatened Commission proceedings are of particular concern because of the burden they impose on electoral speech. Moreover, the target of a complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days before an election. But this Court need not decide whether the threat of Commission proceedings standing alone is sufficient; here, those proceedings are backed by the additional threat of criminal prosecution. . (c) The Sixth Circuit separately considered two other “prudential factors”: “fitness” and “hardship.” This Court need not resolve the continuing vitality of the prudential ripeness doctrine in this case because those factors are easily satisfied here. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. ___. . 525 Fed. Appx. 415, reversed and remanded. Thomas, J., delivered the opinion for a unanimous Court.

Petitioner Susan B. Anthony List (SBA) is a pro-life advocacy organization. During the 2010 election cycle, SBA publicly criticized various Members of Congress who voted for the Patient Protection and Affordable Care Act (ACA). The press release listed then-Congressman Driehaus (Congressman) as a respondent who voted in particular for theACA. Respondents filed suit in the District Court seeking declaratory and injunctive relief on the ground that §§3517.21(B)(9) and (10) of the Ohio false statement statute violated the First and Fourteenth Amendments of the Federal Constitution. The court dismissed the suits as non-justiciable, concluding that neither suit presented a sufficiently concrete injury for purposes of standing or ripeness. The Court of Appeals affirmed on ripeness grounds. Held: Petitioners have alleged a sufficiently injury in fact sufficient for Article III standing. . (a) One recurring issue in this case is determining when the threatened enforcement of a law creates an Article III injury. When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. See Steffel v. Thompson, 415 U. S. 452, 459. P.. (b) The combination of the two threats of criminal prosecution suffices to create Article III Injury. See, e.g., Babbitt v. Farm Workers, 442 U.S. 289, 298. Although the threat of Commission proceedings is a substantial one, it need not decide whether that threat standing alone gives rise to Article III Article III injury. The burdens that Commission proceedings can impose on electoral speech are especially concern here, since both petitioners have pleaded specific statements they intend to make in future election cycles, and since SBA has already stated that it had planned to disseminate similar statements in the future. Moreover, the prospect of future enforcement is substantial, since the statute allows any person with knowledge of the purported violation to file a complaint. COAST named the Commission, the Commission's members, and the Secretary of State, as defendants, and all named defendants are respondents here. In addition, the threat is even more substantial given that the Commission panel actually found probable cause to believe that SBA knowingly lied, and that future complainants may well invoke the prior probable-cause finding to prove that the statute was unconstitutional. Under these circumstances, it is no difficulty to conclude that petitioners' intended speech is "arguably proscribed" by the law, since petitioners allege a credible threat of enforcement. As long as petitioners continue to engage in comparable electoral speech regarding support for the ACA, that speech will remain arguably proscribed by Ohio False Statement Law. And denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other. See also MedImmune, Inc. v. Genentech, Inc., 549 U. s. 118-129. SBA also conceded that its preemption procedures do not support its claim of due process. Cf. Younger v. California Syndical Syndicalist Syndicalism Syndicalists, supra, at 459, which was decided after a hearing on a probable cause determination, but before the scheduled Commission hearing, and which was held to be ripe for review by the Sixth Circuit. SCALIA, J., filed a concurring opinion, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p.. REHNQUIST, C.J., filed an opinion concurring in the judgment in part and dissenting in part, post p..

2013_12-696

https://www.oyez.org/cases/2013/12-696

, except as to Part II–B.[1]* The Court must decide whether the town of Greece, New York, imposes an impermissible establishment of religion by opening its monthly board meetings with a prayer. It must be concluded, consistent with the Court’s opinion in Marsh v. Chambers, 463 U. S. 783 (1983) , that no violation of the Constitution has been shown. I Greece, a town with a population of 94,000, is in upstate New York. For some years, it began its monthly town board meetings with a moment of silence. In 1999, the newly elected town supervisor, John Auberger, decided to replicate the prayer practice he had found meaningful while serving in the county legislature. Following the roll call and recitation of the Pledge of Allegiance, Auberger would invite a local clergyman to the front of the room to deliver an invocation. After the prayer, Auberger would thank the minister for serving as the board’s “chaplain for the month” and present him with a commemorative plaque. The prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures. App. 22a–25a. The town followed an informal method for selecting prayer givers, all of whom were unpaid volunteers. A town employee would call the congregations listed in a local directory until she found a minister available for that month’s meeting. The town eventually compiled a list of willing “board chaplains” who had accepted invitations and agreed to return in the future. The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were too. Greece neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content, in the belief that exercising any degree of control over the prayers would infringe both the free exercise and speech rights of the ministers. Id., at 22a. The town instead left the guest clergy free to compose their own devotions. The resulting prayers often sounded both civic and religious themes. Typical were invocations that asked the divinity to abide at the meeting and bestow blessings on the community: “Lord we ask you to send your spirit of servanthood upon all of us gathered here this evening to do your work for the benefit of all in our community. We ask you to bless our elected and appointed officials so they may deliberate with wisdom and act with courage. Bless the members of our community who come here to speak before the board so they may state their cause with honesty and humility. . . . Lord we ask you to bless us all, that everything we do here tonight will move you to welcome us one day into your kingdom as good and faithful servants. We ask this in the name of our brother Jesus. Amen.” Id., at 45a. Some of the ministers spoke in a distinctly Christian idiom; and a minority invoked religious holidays, scripture, or doctrine, as in the following prayer: “Lord, God of all creation, we give you thanks and praise for your presence and action in the world. We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice ofJesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter. . . . We pray for peace in the world, an end to terrorism, violence, conflict, and war. We pray for stability, democracy, and good government in those countries in which our armed forces are now serving, especially in Iraq and Afghanistan. . . . Praise and glory be yours, O Lord, now and forever more. Amen.” Id., at 88a–89a. Respondents Susan Galloway and Linda Stephens attended town board meetings to speak about issues of local concern, and they objected that the prayers violated their religious or philosophical views. At one meeting, Galloway admonished board members that she foundthe prayers “offensive,” “intolerable,” and an affront to a “diverse community.” Complaint in No. 08–cv–6088 (WDNY), ¶66. After respondents complained that Christian themes pervaded the prayers, to the exclusion of citizens who did not share those beliefs, the town invited a Jewish layman and the chairman of the local Baha’i temple to deliver prayers. A Wiccan priestess who had read press reports about the prayer controversy requested, and was granted, an opportunity to give the invocation. Galloway and Stephens brought suit in the United States District Court for the Western District of New York. They alleged that the town violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers, such as those given “in Jesus’ name.” 732 F. Supp. 2d 195, 203 (2010). They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God” and would not associate the government with any one faith or belief. Id., at 210, 241. The District Court on summary judgment upheld the prayer practice as consistent with the First Amendment. It found no impermissible preference for Christianity, noting that the town had opened the prayer program to all creeds and excluded none. Although most of the prayer givers were Christian, this fact reflected only the predominantly Christian identity of the town’s congregations, rather than an official policy or practice of discriminating against minority faiths. The District Court found no authority for the proposition that the First Amendment required Greece to invite clergy from congregations beyond its borders in order to achieve a minimum level of religious diversity. The District Court also rejected the theory that legislative prayer must be nonsectarian. The court began its inquiry with the opinion in Marsh v. Chambers, 463 U. S. 783 , which permitted prayer in state legislatures by a chaplain paid from the public purse, so long as the prayer opportunity was not “exploited to proselytize or advance any one, or to disparage any other, faith or belief,” id., at 794–795. With respect to the prayer in Greece, the District Court concluded that references to Jesus, and the occasional request that the audience stand for the prayer, did not amount to impermissible proselytizing. It located in Marsh no additional requirement that the prayers be purged of sectarian content. In this regard the court quoted recent invocations offered in the U. S. House of Representatives “in the name of our Lord Jesus Christ,” e.g., 156 Cong Rec. H5205 (June 30, 2010), and situated prayer in this context as part a long tradition. Finally, the trial court noted this Court’s statement in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 603 (1989) , that the prayers in Marsh did not offend the Establishment Clause “because the particular chaplain had ‘removed all references to Christ.’ ” But the District Court did not read that statement to mandate that legislative prayer be nonsectarian, at least in circumstances where the town permitted clergy from a variety of faiths to give invocations. By welcoming many viewpoints, the District Court concluded, the town would be unlikely to give the impression that it was affiliating itself with any one religion. The Court of Appeals for the Second Circuit reversed. 681 F. 3d 20, 34 (2012). It held that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity. The town’s failure to promote the prayer opportunity to the public, or to invite ministers from congregations outside the town limits, all but “ensured a Christian viewpoint.” Id., at 30–31. Although the court found no inherent problem in the sectarian content of the prayers, it concluded that the “steady drumbeat” of Christian prayer, unbroken by invocations from other faith traditions, tended to affiliate the town with Christianity. Id., at 32. Finally, the court found it relevant that guest clergy sometimes spoke on behalf of all present at the meeting, as by saying “let us pray,” or by asking audience members to stand and bow their heads: “The invitation . . . to participate in the prayer . . . placed audience members who are nonreligious or adherents of non-Christian religion in the awkward position of either participating in prayers invoking beliefs they did not share or appearing to show disrespect for the invocation.” Ibid. That board members bowed their heads or made the sign of the cross further conveyed the message that the town endorsed Christianity. The Court of Appeals emphasized that it was the “interaction of the facts present in this case,” rather than any single element, that rendered the prayer unconstitutional. Id., at 33. Having granted certiorari to decide whether the town’s prayer practice violates the Establishment Clause, 569 U. S. ___ (2013), the Court now reverses the judgment of the Court of Appeals. II In Marsh v. Chambers, 463 U. S. 783 , the Court found no First Amendment violation in the Nebraska Legislature’s practice of opening its sessions with a prayer delivered by a chaplain paid from state funds. The decision concluded that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. As practiced by Congress since the framing of the Constitution, legislative prayer lends grav-ity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful soci-ety. See Lynch v. Donnelly, 465 U. S. 668, 693 (1984) (O’Connor, J., concurring); cf. A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty 83 (1990). The Court has considered this symbolic expression to be a “tolerable acknowledgement of beliefs widely held,” Marsh, 463 U. S., at 792, rather than a first, treacherous step towards establishment of a state church. Marsh is sometimes described as “carving out an exception” to the Court’s Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to “any of the formal ‘tests’ that have traditionally structured” this inquiry. Id., at 796, 813 (Brennan, J., dissenting). The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause. The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. See id., at 787–789, and n. 10; N. Feldman, Divided by God 109 (2005). But see Marsh, supra, at 791–792, and n. 12 (noting dissenting views among the Framers); Madison, “Detached Memoranda”, 3 Wm. & Mary Quarterly 534, 558–559 (1946) (hereinafter Madison’s Detached Memoranda). When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a cen-tury, and the majority of the other States also had the same, consistent practice. 463 U. S., at 788–790, and n. 11. Although no information has been cited by the parties to indicate how many local legislative bodies open their meetings with prayer, this practice too has historical precedent. See Reports of Proceedings of the City Council of Boston for the Year Commencing Jan. 1, 1909, and Ending Feb. 5, 1910, pp. 1–2 (1910) (Rev. Arthur Little) (“And now we desire to invoke Thy presence, Thy blessing, and Thy guidance upon those who are gathered here this morning . . .”). “In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society.” Marsh, supra, at 792. Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted “by reference to historical practices and understandings.” County of Allegheny, 492 U. S., at 670 (Kennedy, J., concurring in judgment in part and dissenting in part). That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society. D. Currie, The Constitution in Congress: The Federalist Period 1789–1801, pp. 12–13 (1997). In the 1850’s, the judiciary committees in both the House and Senate reevaluated the practice of official chaplaincies after receiving petitions to abolish the office. The committees concluded that the office posed no threat of an establishment because lawmakers were not compelled to attend the daily prayer, S. Rep. No. 376, 32d Cong., 2d Sess., 2 (1853); no faith was excluded by law, nor any favored, id., at 3; and the cost of the chaplain’s salary imposed a vanishingly small burden on taxpayers, H. Rep. No. 124, 33d Cong., 1st Sess., 6 (1854). Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. County of Allegheny, supra, at 670 (opinion of Kennedy, J.); see also School Dist. of Abington Township v. Schempp, 374 U. S. 203, 294 (1963) (Brennan, J., concurring) (“[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers”). A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent. See Van Orden v. Perry, 545 U. S. 677 –704 (2005) (Breyer, J., concurring in judgment). The Court’s inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures. Respondents assert that the town’s prayer exercise falls outside that tradition and transgresses the Establishment Clause for two independent but mutually reinforcing reasons. First, they argue that Marsh did not approve prayers containing sectarian language or themes, such as the prayers offered in Greece that referred to the “death, resurrection, and ascension of the Savior Jesus Christ,” App. 129a, and the “saving sacrifice of Jesus Christ on the cross,” id., at 88a. Second, they argue that the setting and conduct of the town board meetings create social pressures that force nonadherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsor the prayer and will vote on matters citizens bring before the board. The sectarian content of the prayers compounds the subtle coercive pressures, they argue, because the nonbeliever who might tolerate ecumenical prayer is forced to do the same for prayer that might be inimical to his or her beliefs. A Respondents maintain that prayer must be nonsectarian, or not identifiable with any one religion; and they faultthe town for permitting guest chaplains to deliver prayers that “use overtly Christian terms” or “invoke specifics of Christian theology.” Brief for Respondents 20. A prayer is fitting for the public sphere, in their view, only if it contains the ‘ “most general, nonsectarian reference to God,’ ” id., at 33 (quoting M. Meyerson, Endowed by Our Creator: The Birth of Religious Freedom in America 11–12 (2012)), and eschews mention of doctrines associated with any one faith, Brief for Respondents 32–33. They argue that prayer which contemplates “the workings of the Holy Spirit, the events of Pentecost, and the belief that God ‘has raisedup the Lord Jesus’ and ‘will raise us, in our turn, and put us by His side’ ” would be impermissible, as would any prayer that reflects dogma particular to a single faith tradition. Id., at 34 (quoting App. 89a and citing id., at 56a, 123a, 134a). An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a ge-neric theism but because our history and tradition have shown that prayer in this limited context could “coexis[t] with the principles of disestablishment and religious freedom.” 463 U. S., at 786. The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable. One of the Senate’s first chaplains, the Rev. William White, gave prayers in a series that included the Lord’s Prayer, the Collect forAsh Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom’s Prayer, and a prayer seeking “the grace of our Lord Jesus Christ, &c.” Letter from W. White to H. Jones (Dec. 29, 1830), in B. Wilson, Memoir of the Life of the Right Reverend William White, D. D., Bishop of the Protestant Episcopal Church in the State of Pennsylvania 322 (1839); see also New Hampshire Patriot & State Gazette, Dec. 15, 1823, p. 1 (describing a Senate prayer addressing the “Throne of Grace”); Cong. Globe, 37th Cong., 1st Sess., 2 (1861) (reciting the Lord’s Prayer). The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today. Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds. See, e.g., 160 Cong. Rec. S1329 (Mar. 6, 2014) (Dalai Lama) (“I am a Buddhist monk—a simple Buddhist monk—so we pray to Buddha and all other Gods”); 159 Cong. Rec. H7006 (Nov. 13, 2013) (Rabbi Joshua Gruenberg) (“Our God and God of our ancestors, Everlasting Spirit of the Universe . . .”); 159 Cong. Rec. H3024 (June 4, 2013) (Satguru Bodhinatha Veylanswami) (“Hindu scripture declares, without equivocation, that the highest of high ideals is to never know-ingly harm anyone”); 158 Cong. Rec. H5633 (Aug. 2, 2012) (Imam Nayyar Imam) (“The final prophet of God, Muhammad, peace be upon him, stated: ‘The leaders of a people are a representation of their deeds’ ”). The contention that legislative prayer must be generic or nonsectarian derives from dictum in County of Allegheny, 492 U. S. 573 , that was disputed when written and has been repudiated by later cases. There the Court held that a crèche placed on the steps of a county courthouse to celebrate the Christmas season violated the Establishment Clause because it had “the effect of endorsing a patently Christian message.” Id., at 601. Four dissenting Justices disputed that endorsement could be the proper test, as it likely would condemn a host of traditional practices that recognize the role religion plays in our society, among them legislative prayer and the “forthrightly religious” Thanksgiving proclamations issued by nearly every President since Washington. Id., at 670–671. The Court sought to counter this criticism by recasting Marsh to permit only prayer that contained no overtly Christian references: “However history may affect the constitutionality of nonsectarian references to religion by the government, history cannot legitimate practices that demonstrate the government’s allegiance to a particular sect or creed . . . . The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had ‘removed all references to Christ.’ ” Id., at 603 (quoting Marsh, supra, at 793, n. 14; footnote omitted). This proposition is irreconcilable with the facts of Marsh and with its holding and reasoning. Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content. The opinion noted that Nebraska’s chaplain, the Rev. Robert E. Palmer, modu-lated the “explicitly Christian” nature of his prayer and “removed all references to Christ” after a Jewish law-maker complained. 463 U. S., at 793, n. 14. With this foot-note, the Court did no more than observe the practical demands placed on a minister who holds a permanent, appointed position in a legislature and chooses to write his or her prayers to appeal to more members, or at least to give less offense to those who object. See Mallory, “An Officer of the House Which Chooses Him, and Nothing More”: How Should Marsh v. Chambers Apply to Rotating Chaplains?, 73 U. Chi. L. Rev. 1421, 1445 (2006). Marsh did not suggest that Nebraska’s prayer practice would have failed had the chaplain not acceded to the legislator’s request. Nor did the Court imply the rule that prayer violates the Establishment Clause any time it is given in the name of a figure deified by only one faith or creed. See Van Orden, 545 U. S., at 688, n. 8 (recognizing that the prayers in Marsh were “often explicitly Christian” and rejecting the view that this gave rise to an establishment violation). To the contrary, the Court instructed that the “content of the prayer is not of concern to judges,” provided “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” 463 U. S., at 794–795. To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact. Cf. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 13–14). Our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code of moral behavior. Engel v. Vitale, 370 U. S. 421, 430 (1962) . It would be but a few steps removed from that prohibition for legislatures to require chaplains to redact the religious content from their message in order to make it acceptable for the public sphere. Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy. See Lee v. Weisman, 505 U. S. 577, 590 (1992) (“The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be ac-cepted”); Schempp, 374 U. S., at 306 (Goldberg, J., concurring) (arguing that “untutored devotion to the concept of neutrality” must not lead to “a brooding and pervasive devotion to the secular”). Respondents argue, in effect, that legislative prayer may be addressed only to a generic God. The law and the Court could not draw this line for each specific prayer or seek to require ministers to set aside their nuanced and deeply personal beliefs for vague and artificial ones. There is doubt, in any event, that consensus might be reached as to what qualifies as generic or nonsectarian. Honorifics like “Lord of Lords” or “King of Kings” might strike a Christian audience as ecumenical, yet these titles may have no place in the vocabulary of other faith tradi-tions. The difficulty, indeed the futility, of sifting sectarian from nonsectarian speech is illustrated by a letter thata lawyer for the respondents sent the town in the early stages of this litigation. The letter opined that references to “Father, God, Lord God, and the Almighty” would be acceptable in public prayer, but that references to “Jesus Christ, the Holy Spirit, and the Holy Trinity” would not. App. 21a. Perhaps the writer believed the former grouping would be acceptable to monotheists. Yet even seemingly general references to God or the Father might alienate nonbelievers or polytheists. McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 893 (2005) (Scalia, J., dissenting). Because it is unlikely that prayer will be inclusive beyond dispute, it would be unwise to adopt what respondents think is the next-best option: permitting those religious words, and only those words, that are acceptable to the majority, even if they will exclude some. Torcaso v. Watkins, 367 U. S. 488, 495 (1961) . The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian. In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from its place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage. Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbeliev-ers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court. The tradition reflected in Marsh permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths. That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines, does not remove it from that tradition. These religious themes provide particular means to universal ends. Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Marsh, 463 U. S., at 794–795. It is thus possible to discern in the prayers offered to Congress a commonality of theme and tone. While these prayers vary in their degree of religiosity, they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws. The first prayer delivered to the Continental Congress by the Rev. Jacob Duché on Sept. 7, 1774, provides an example: “Be Thou present O God of Wisdom and direct the counsel of this Honorable Assembly; enable them to settle all things on the best and surest foundations; that the scene of blood may be speedily closed; that Order, Harmony, and Peace be effectually restored, and the Truth and Justice, Religion and Piety, prevail and flourish among the people. “Preserve the health of their bodies, and the vigor of their minds, shower down on them, and the millions they here represent, such temporal Blessings as Thou seest expedient for them in this world, and crown them with everlasting Glory in the world to come. All this we ask in the name and through the merits ofJesus Christ, Thy Son and our Saviour, Amen.” W. Federer, America’s God and Country 137 (2000). From the earliest days of the Nation, these invocations have been addressed to assemblies comprising many different creeds. These ceremonial prayers strive for the idea that people of many faiths may be united in a community of tolerance and devotion. Even those who dis-agree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith. See Letter from John Adams to Abigail Adams (Sept. 16, 1774), in C. Adams, Familiar Letters of John Adams and His Wife Abigail Adams, During the Revolution 37–38 (1876). The prayers delivered in the town of Greece do not fall outside the tradition this Court has recognized. A number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a “spirit of cooperation” among town leaders. App. 31a, 38a. Among numerous examples of such prayer in the record is the invocation given by the Rev. Richard Barbour at the September 2006 board meeting: “Gracious God, you have richly blessed our nationand this community. Help us to remember your generosity and give thanks for your goodness. Bless the elected leaders of the Greece Town Board as they conduct the business of our town this evening. Give them wisdom, courage, discernment and a single-minded desire to serve the common good. We ask your blessing on all public servants, and especially on our police force, firefighters, and emergency medical personnel. . . . Respectful of every religious tradition, I offer this prayer in the name of God’s only son Jesus Christ, the Lord, Amen.” Id., at 98a–99a. Respondents point to other invocations that disparaged those who did not accept the town’s prayer practice. One guest minister characterized objectors as a “minority” who are “ignorant of the history of our country,” id., at 108a, while another lamented that other towns did not have “God-fearing” leaders, id., at 79a. Although these two remarks strayed from the rationale set out in Marsh, they do not despoil a practice that on the whole reflects and embraces our tradition. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation. Marsh, indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a single prayer. 463 U. S., at 794–795. Finally, the Court disagrees with the view taken by the Court of Appeals that the town of Greece contravened the Establishment Clause by inviting a predominantly Christian set of ministers to lead the prayer. The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. The quest to promote “a ‘diversity’ of religious views” would require the town “to make wholly inappropriate judgments about the number of religions [it] should sponsor and the relative frequency with which it should sponsor each,” Lee, 505 U. S., at 617 (Souter, J., concurring), a form of government entanglement with religion that is far more troublesome than the current approach. B Respondents further seek to distinguish the town’s prayer practice from the tradition upheld in Marsh on the ground that it coerces participation by nonadherents. They and some amici contend that prayer conducted in the intimate setting of a town board meeting differs in fundamental ways from the invocations delivered in Congress and state legislatures, where the public remains segregated from legislative activity and may not address the body except by occasional invitation. Citizens attend town meetings, on the other hand, to accept awards; speak on matters of local importance; and petition the board for action that may affect their economic interests, such as the granting of permits, business licenses, and zoning variances. Respondents argue that the public may feel subtle pressure to participate in prayers that violate their beliefs in order to please the board members from whom they are about to seek a favorable ruling. In their view the fact that board members in small towns know many of their constituents by name only increases the pressure to conform. It is an elemental First Amendment principle that government may not coerce its citizens “to support or participate in any religion or its exercise.” County of Allegheny, 492 U. S., at 659 (Kennedy, J., concurring in judgment in part and dissenting in part); see also Van Orden, 545 U. S., at 683 (plurality opinion) (recognizing that our “institutions must not press religious observances upon their citizens”). On the record in this case the Court is not persuaded that the town of Greece, through the act of offering a brief, solemn, and respectful prayer to open its monthly meetings, compelled its citizens to engage in a religious observance. The inquiry remains a fact-sensitive one that considers both the setting in which the prayer arises and the audience to whom it is directed. The prayer opportunity in this case must be evaluated against the backdrop of historical practice. As a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of “God save the United States and this honorable Court” at the opening of this Court’s sessions. See Lynch, 465 U. S., at 693 (O’Connor, J., concurring). It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews. See Salazar v. Buono, 559 U. S. 700 –721 (2010) (plurality opinion); Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 308 (2000) . That many appreciate these acknowledgments of the divine in our public institutions does not suggest that those who disagree are compelled to join the expression or approve its content. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) . The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing. The District Court in Marsh described the prayer exercise as “an internal act” directed at the Nebraska Legislature’s “own members,” Chambers v. Marsh, 504 F. Supp. 585, 588 (Neb. 1980), rather than an effort to promote religious observance among the public. See also Lee, 505 U. S., at 630, n. 8 (Souter, J., concurring) (describing Marsh as a case “in which government officials invoke[d] spiritual inspiration entirely for their own benefit”); Atheists of Fla., Inc. v. Lakeland, 713 F. 3d 577, 583 (CA11 2013) (quoting a city resolution providing for prayer “for the benefit and blessing of” elected leaders); Madison’s Detached Memoranda 558 (characterizing prayer in Congress as “religious worship for national representatives”); Brief for U. S. Senator Marco Rubio et al. as Amici Curiae 30–33; Brief for 12 Members of Congress as Amici Curiae 6. To be sure, many members of the public find these prayers meaningful and wish to join them. But their purpose is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating to the time of the Framers. For members of town boards and commissions, who often serve part-time and as volunteers, ceremonial prayer may also reflect the values they hold as private citizens. The prayer is an opportunity for them to show who and what they are without denying the right to dissent by those who disagree. The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. No such thing occurred in the town of Greece. Although board members themselves stood, bowed their heads, or made the sign of the cross during the prayer, they at no point solicited similar gestures by the public. Respondents point to several occasions where audience members were asked to rise for the prayer. These requests, however, came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so thinking the action was inclusive, not coercive. See App. 69a (“Would you bow your heads with me as we invite the Lord’s presence here tonight?”); id., at 93a (“Let us join our hearts and minds together in prayer”); id., at 102a (“Would you join me in a moment of prayer?”); id., at 110a (“Those who are willing may join me now in prayer”). Respondents suggest that constituents might feel pressure to join the prayers to avoid irritating the officials who would be ruling on their petitions, but this argument has no evidentiary support. Nothing in the record indicates that town leaders allocated benefits and burdens based on participation in the prayer, or that citizens were received differently depending on whether they joined the invocation or quietly declined. In no instance did town leaders signal disfavor toward nonparticipants or suggest that their stature in the community was in any way diminished. A practice that classified citizens based on their religious views would violate the Constitution, but that is not the case before this Court. In their declarations in the trial court, respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions. See Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 44 (2004) (O’Connor, J., concurring) (“The compulsion of which Justice Jackson was concerned . . . was of the direct sort—the Constitution does not guarantee citizens a rightentirely to avoid ideas with which they disagree”). If circum-stances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course. But the showing has not been made here, where the prayers neither chastised dissenters nor attempted lengthy disquisition on religious dogma. Courts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood. But in the general course legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate. See County of Allegheny, 492 U. S., at 670 (Kennedy, J., concurring in judgment in part and dissenting in part). This case can be distinguished from the conclusions and holding of Lee v. Weisman, 505 U. S. 577 . There the Court found that, in the context of a graduation where school authorities maintained close supervision over the conduct of the students and the substance of the ceremony, a religious invocation was coercive as to an objecting student. Id., at 592–594; see also Santa Fe Independent School Dist., 530 U. S., at 312. Four Justices dissented in Lee, but the circumstances the Court confronted there are not present in this case and do not control its outcome. Nothing in the record suggests that members of the public are dissuaded from leaving the meeting room during the prayer, arriving late, or even, as happened here, making a later protest. In this case, as in Marsh, board members and constituents are “free to enter and leave with little comment and for any number of reasons.” Lee, supra, at 597. Should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy. And should they remain, their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed. Neither choice represents an unconstitutional imposition as to mature adults, who “presumably” are “not readily susceptible to religious indoctrination or peer pressure.” Marsh, 463 U. S., at 792 (internal quotation marks and citations omitted). In the town of Greece, the prayer is delivered during the ceremonial portion of the town’s meeting. Board members are not engaged in policymaking at this time, but in more general functions, such as swearing in new police officers, inducting high school athletes into the town hall of fame, and presenting proclamations to volunteers, civic groups, and senior citizens. It is a moment for town leaders to recognize the achievements of their constituents and the aspects of community life that are worth celebrating. By inviting ministers to serve as chaplain for the month, and welcoming them to the front of the room alongside civic leaders, the town is acknowledging the central place that religion, and religious institutions, hold in the lives of those present. Indeed, some congregations are not simply spiritual homes for town residents but also the provider of social services for citizens regardless of their beliefs. See App. 31a (thanking a pastor for his “community involvement”); id., at 44a (thanking a deacon “for the job that you have done on behalf of our community”). The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent rather than to exclude or coerce nonbelievers. Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs. The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion. * * * The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents. The judgment of the U. S. Court of Appeals for the Second Circuit is reversed. It is so ordered.Notes 1 * and join this opinion in full. and join this opinion except as to Part II–B.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus TOWN OF GREECE, NEW YORK v. GALLOWAY et al. certiorari to the united states court of appeals for the second circuit No. 12–696. Argued November 6, 2013—Decided May 5, 2014 Since 1999, the monthly town board meetings in Greece, New York, have opened with a roll call, a recitation of the Pledge of Allegiance, and a prayer given by clergy selected from the congregations listed in a local directory. While the prayer program is open to all creeds, nearly all of the local congregations are Christian; thus, nearly all of the participating prayer givers have been too. Respondents, citizens who attend meetings to speak on local issues, filed suit, alleging that the town violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers. They sought to limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God.” The District Court upheld the prayer practice on summary judgment, finding no impermissible preference for Christianity; concluding that the Christian identity of most of the prayer givers reflected the predominantly Christian character of the town’s congregations, not an official policy or practice of discriminating against minority faiths; finding that the First Amendment did not require Greece to invite clergy from congregations beyond its borders to achieve religious diversity; and rejecting the theory that legislative prayer must be nonsectarian. The Second Circuit reversed, holding that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity. Held: The judgment is reversed. 681 F.3d 20, reversed. Justice Kennedy delivered the opinion of the Court, except as to Part II–B, concluding that the town’s prayer practice does not violate the Establishment Clause. . (a) Legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. Marsh v. Chambers, 463 U.S. 783, 792. In Marsh, the Court concluded that it was not necessary to define the Establishment Clause’s precise boundary in order to uphold Nebraska’s practice of employing a legislative chaplain because history supported the conclusion that the specific practice was permitted. The First Congress voted to appoint and pay official chaplains shortly after approving language for the First Amendment, and both Houses have maintained the office virtually uninterrupted since then. See id., at 787–789, and n. 10. A majority of the States have also had a consistent practice of legislative prayer. Id., at 788–790, and n. 11. There is historical precedent for the practice of opening local legislative meetings with prayer as well. Marsh teaches that the Establishment Clause must be interpreted “by reference to historical practices and understandings.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 670 (opinion of Kennedy, J.). Thus, any test must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. The Court’s inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures. . (b) Respondents’ insistence on nonsectarian prayer is not consistent with this tradition. The prayers in Marsh were consistent with the First Amendment not because they espoused only a generic theism but because the Nation’s history and tradition have shown that prayer in this limited context could “coexis[t] with the principles of disestablishment and religious freedom.” 463 U. S., at 786. Dictum in County of Allegheny suggesting that Marsh permitted only prayer with no overtly Christian references is irreconcilable with the facts, holding, and reasoning of Marsh, which instructed that the “content of the prayer is not of concern to judges,” provided “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” 463 U. S., at 794–795. To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Respondents’ contrary arguments are unpersuasive. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permis-sible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech. In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from the prayer’s place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage. From the Nation’s earliest days, invocations have been addressed to assemblies comprising many different creeds, striving for the idea that people of many faiths may be united in a community of tolerance and devotion, even if they disagree as to religious doctrine. The prayers delivered in Greece do not fall outside this tradition. They may have invoked, e.g., the name of Jesus, but they also invoked universal themes, e.g., by calling for a “spirit of cooperation.” Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation. See 463 U. S., at 794–795. Finally, so long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. . Justice Kennedy, joined by The Chief Justice and Justice Alito, concluded in Part II–B that a fact-sensitive inquiry that considers both the setting in which the prayer arises and the audience to whom it is directed shows that the town is not coercing its citizens to engage in a religious observance. The prayer opportunity is evaluated against the backdrop of a historical practice showing that prayer has become part of the Nation’s heritage and tradition. It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens. Furthermore, the principal audience for these invocations is not the public, but the lawmakers themselves. And those lawmakers did not direct the public to participate, single out dissidents for opprobrium, or indicate that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. Respondents claim that the prayers gave them offense and made them feel excluded and disrespected, but offense does not equate to coercion. In contrast to Lee v. Weisman, 505 U.S. 577, where the Court found coercive a religious invocation at a high school graduation, id., at 592–594, the record here does not suggest that citizens are dissuaded from leaving the meeting room during the prayer, arriving late, or making a later protest. That the prayer in Greece is delivered during the opening ceremonial portion of the town’s meeting, not the policymaking portion, also suggests that its purpose and effect are to acknowledge religious leaders and their institutions, not to exclude or coerce nonbelievers. . Justice Thomas, joined by Justice Scalia as to Part II, agreed that the town’s prayer practice does not violate the Establishment Clause, but concluded that, even if the Establishment Clause were properly incorporated against the States through the Fourteenth Amendment, the Clause is not violated by the kind of subtle pressures respondents allegedly suffered, which do not amount to actual legal coercion. The municipal prayers in this case bear no resemblance to the coercive state establishments that existed at the founding, which exercised government power in order to exact financial support of the church, compel religious observance, or control religious doctrine. . Kennedy, J., delivered the opinion of the Court, except as to Part II–B. Roberts, C. J., and Alito, J., joined the opinion in full, and Scalia and Thomas, JJ., joined except as to Part II–B. Alito, J., filed a concurring opinion, in which Scalia, J., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Scalia, J., joined as to Part II. Breyer, J., filed a dissenting opinion. Kagan, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.

Greece, a town in upstate New York, began its monthly town board meetings with a moment of silence. After the prayer, the newly elected town supervisor would invite a clergyman to the front of the room to deliver an invocation, and would thank the minister for serving as the board chaplain for the month and present him with a commemorative plaque. The prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs and follow a tradition practiced by Congress and dozens of state legislatures. The town at no point excluded or denied an opportunity to a would-be prayer giver, and references to Jesus and the occasional request that the audience stand for the prayer did not amount to impermissible proselytizing. It located in Marsh v. Chambers, 463 U. S. 783, no additional requirement that the prayer be purged of sectarian content, in the belief that exercising any degree of control over the prayer would infringe both the free exercise and speech rights of the ministers. Respondents brought suit in Federal District Court, alleging that Greece violated the First Amendment by opening its meetings with prayer that comported with tradition and did not coerce participation by nonadherents. The District Court upheld the prayer practice, but rejected the theory that legislative prayer must be nonsectarian. The court found no authority for the proposition that the Establishment Clause required Greece to invite clergy from congregations beyond its borders in order to achieve a minimum level of religious diversity. With respect to the prayer in Greece, the court concluded that references to the name of Jesus, the Heavenly Father, or the Holy Spirit, and that citizens were received differently depending on whether they joined the invocation or quietly declined. Moreover, the prayer was located no more in Marsh than it was in Marsh, and the District Court did not read that statement to mandate the prayer to be nondiscriminatory, at least in circumstances where the town permitted clergy from a variety of faiths to give invocations. Held: The prayer practice in Greece fits within the tradition long followed in Congress and the state legislatures, and thus is not an unconstitutional establishment of religion. . (a) On the record in this case, the Court is not persuaded that the town of Greece, through the act of offering a brief, solemn, and respectful prayer to open its monthly board meetings, compelled its citizens to engage in a religious observance. Although it is unlikely that prayer will be inclusive beyond dispute, it would be unwise to adopt what respondents think is the next-best option: permitting those religious words, and only those words, that are acceptable to the majority, even if they will exclude some. That many appreciate these acknowledgments of the divine in our public institutions does not suggest that those who disagree are compelled to join the expression or approve its content. In the general course, legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate. This case can be distinguished from the conclusions and holding of Lee v. Weisman, 505 U.S. 577, that the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society. However, the circumstances the Court confronted there are not present here, and do not control its outcome. Nothing in the record suggests that members of the public are dissuaded from leaving the meeting room during a prayer, arriving late, or, as happened here, making a later protest. Nor does the fact that nearly all of the congregations in town turned out to be members of a predominantly Christian set of ministers represent a representative of the town that would be required to sponsor a prayer sponsored by a majority of the taxpayers. And the absence of any sign of religious indoctrination during the prayer does not render it unconstitutional as a matter of local custom. Here, the town made reasonable efforts to identify all of its congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. While it may be difficult for town officials to determine the appropriateness of the prayer for each specific prayer, there is doubt, in any event, that consensus might be reached as to what qualifies as generic or sectarian, and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions. A practice that classified citizens based on their religious views would violate the Constitution, but that is not the case here, since the prayer here does not fall outside that tradition. To hold that invocations must be nontsectarian would force legislatures to sponsor prayer that is far more difficult to advance

2013_12-1038

https://www.oyez.org/cases/2013/12-1038

. Federal law makes it a crime to reenter a “military . . . installation” after having been ordered not to do so “by any officer or person in command.” 18 U. S. C. §1382. The question presented is whether a portion of an Air Force base that contains a designated protest area and an easement for a public road qualifies as part of a “military installation.” I A Vandenberg Air Force Base is located in central California, near the coast, approximately 170 miles northwest of Los Angeles. The Base sits on land owned by the United States and administered by the Department of the Air Force. It is the site of sensitive missile and space launch facilities. The commander of Vandenberg has designated it a “closed base,” meaning that civilians may not enter without express permission. Memorandum for the General Public Re: Closed Base, from David J. Buck, Commander (Oct. 23, 2008), App. 51; see also 32 CFR §809a.2(b) (2013) (“Each [Air Force] commander is au-thorized to grant or deny access to their installations,and to exclude or remove persons whose presence isunauthorized”). Although the Base is closed, the Air Force has granted to the County of Santa Barbara “an easement for a right-of-way for a road or street” over two areas within Vandenberg. Department of the Air Force, Easement for Road or Street No. DA–04–353–ENG–8284 (Aug. 20, 1962), App. 35. Pursuant to that easement, two state roads traverse the Base. Highway 1 (the Pacific Coast Highway) runs through the eastern part of the Base and provides a route between the towns of Santa Maria and Lompoc. Highway 246 runs through the southern part of the Base and allows access to a beach and a train station on Vandenberg’s western edge. The State of California maintains and po-lices these highways as it does other state roads, except that its jurisdiction is merely “concurrent” with that ofthe Federal Government. Letter from Governor Edmund G. Brown, Jr., to Joseph C. Zengerle, Assistant Secretary of the Air Force (July 21, 1981), App. 40. The easement in-strument states that use of the roads “shall be subject to such rules and regulations as [the Base commander] may prescribe from time to time in order to properly protect the interests of the United States.” Easement, App. 36. The United States also “reserves to itself rights-of-way for all purposes” that would not create “unnecessary interference with . . . highway purposes.” Id., at 37. As relevant to this case, Highway 1 runs northwest several miles inside Vandenberg until it turns northeast at a 90 degree angle. There Highway 1 intersects with Lompoc Casmalia Road, which continues running northwest, and with California Boulevard, which runs southwest. In the east corner of this intersection there is a middle school. In the west corner there is a visitors’ center and a public bus stop. A short way down California Boulevard is the main entrance to the operational areas of the Base where military personnel live and work. Those areas are surrounded by a fence and entered by a security checkpoint. See Appendix, infra (maps from record). In the south corner of the intersection is an area that has been designated by the Federal Government for peaceful protests. A painted green line on the pavement, a temporary fence, Highway 1, and Lompoc Casmalia Road mark the boundaries of the protest area. Memorandum for the General Public Re: Limited Permission for Peaceful Protest Activity Policy, from David J. Buck, Commander (Oct. 23, 2008), App. 57–58. The Base commander has enacted several restrictions to control the protest area, including reserving the authority “for any reason” to withdraw permission to protest and “retain[ing] authority and control over who may access the installation, including access to roadway easements for purposes other than traversing by vehicle through the installation.” Ibid. A public advisory explains other rules for the protest area: demonstrations “must be coordinated and scheduled with [B]ase Public Affairs and [Base] Security Forces at least two (2) weeks in advance”; “[a]nyone failing to vacate installation property upon advisement from Security Forces will be cited for trespass pursuant to [ 18 U. S. C. §1382]”; and “[a]ctivities other than peaceful protests in this area are not permitted and are specifically prohib-ited.” U. S. Air Force Fact Sheet, Protest Advisory, App. 52–53. The advisory states, consistent with federal regulations, that anyone who fails to adhere to these policies may “receive an official letter barring you from entering Vandenberg.” Id., at 55; see also 32 CFR §809a.5 (“Under the authority of 50 U. S. C. [§]797, installation commanders may deny access to the installation through the use of a barment order”). And for any person who is “currently barred from Vandenberg AFB, there is no exception to the barment permitting you to attend peaceful protest activity on Vandenberg AFB property. If you are barred and attend a protest or are otherwise found on base, you will be cited and detained for a trespass violation due to the non-adherence of the barment order.” Protest Advisory, App. 54. B John Dennis Apel is an antiwar activist who demonstrates at Vandenberg. In March 2003, Apel trespassed beyond the designated protest area and threw blood on a sign for the Base. He was convicted for these actions, was sentenced to two months’ imprisonment, and was barred from the Base for three years. In May 2007, Apel returned to Vandenberg to protest. When he trespassed again and was convicted, he received another order barring him from Vandenberg, this time permanently, unless he followed specified procedures “to modify or revoke” the order. Memorandum for John D. Apel Re: Barment Order (Oct. 22, 2007), App. 63–65. The only exception to the barment was limited permission from the Base commander for Apel to “ ‘traverse’, meaning to travel . . . on [Highway] 1 and . . . on [Highway] 246 . . . . You are not authorized to deviate from these paved roadways onto [Vandenberg] property.” Id., at 64. The order informed Apel that ifhe reentered Vandenberg in violation of the order, he would “be subject to detention by Security Forces personnel and prosecution by civilian authorities for a violation of [ 18 U. S. C. §1382].” Ibid. Apel ignored the commander’s order and reentered Vandenberg several times during 2008 and 2009. That led the Base commander to serve Apel with an updated order, which informed him: “You continue to refuse to adhere to the rules and guidelines that have been put in place by me to protect and preserve order and to safeguard the persons and property under my jurisdiction by failing to remain in the area approved by me for peaceful demonstrations pursuant to [50] U. S. C. § 797 and 32 C. F. R. § 809a.0–[809]a.11. You cannot be expectedor trusted to abide by the protest guidance rules based upon this behavior. I consider your presence on this installation to be a risk and detrimental to my responsibility to protect and preserve order and to safeguard the persons and property under my jurisdiction. You are again ordered not to enter onto [Vandenberg] property, as provided in the October 22, 2007 order. The content and basis of that order is hereby incorporated by reference herein, EXCEPT that your barment will be for a period of three (3) years from the dateof this supplemental letter.” Memorandum for John D. Apel Re: Barment Order Dated Oct. 22, 2007 (served Jan. 31, 2010), App. 59–62. Apel ignored this barment order too, and on three occasions in 2010 he reentered Vandenberg to protest in the designated area. Each time Vandenberg security personnel reminded him of the barment order and instructed him to leave. Each time Apel refused. He was cited for violating §1382 and escorted off Base property. A Magistrate Judge convicted Apel and ordered him to pay a total of $355 in fines and fees. Apel appealed to the Federal District Court for the Central District of California. The District Court rejected Apel’s defense that §1382 does not apply to the designated protest area, holding that the military “has a sufficient possessory interest and exercises sufficient control over” the area. App. to Pet. for Cert. 14a. The court also concluded that Apel’s conviction would not violate the First Amendment. Id., at 13a. The United States Court of Appeals for the Ninth Circuit reversed, holding that the statute does not apply. Based on Circuit precedent, the Ninth Circuit interpreted §1382 to require the Government to prove that it has “the exclusive right of possession of the area on which the trespass allegedly occurred.” 676 F. 3d 1202, 1203 (2012) (citing United States v. Parker, 651 F. 3d 1180 (CA9 2011)). The court found that the easement through Vandenberg deprived the Government of exclusive possession of the roadway, so it concluded that §1382 does not cover the portion of the Base where Apel’s protest occurred. We granted certiorari, 569 U. S. ___ (2013), and now vacate the judgment. II Section 1382 provides in full: “Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or “Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof— “Shall be fined under this title or imprisoned not more than six months, or both.” Apel does not dispute that he was “found within” the lawful boundaries of Vandenberg, “within the jurisdiction of the United States,” after having been “ordered not to reenter” by the Base commander. §1382. And certainly Vandenberg would naturally be described as a “military installation”: it is an Air Force base, which a military commander has closed to the public (with limited exceptions), located on land owned by the United States and under the jurisdiction of the Air Force, where military personnel conduct sensitive missile operations. Against this straightforward interpretation, Apel insists that §1382 applies only where the military exercises exclusive possession and control, which, he contends, does not include land subject to a roadway easement. Apel further argues that the fence enclosing Vandenberg’s operational facilities marks the real boundary of the Base and that Vandenberg’s commander lacks authority to control the rest, or at least the designated protest area. We take his arguments in turn. A Apel asserts that the Ninth Circuit’s exclusive possession and control requirement “derives directly from the text of §1382.” Brief for Respondent 23. It does not. Section 1382 is written broadly to apply to many different kinds of military places: a “reservation, post, fort, arsenal, yard, station, or installation.” Nothing in the text defines those places in terms of the access granted to the public or the nature of the Government’s possessory interest. See United States v. Albertini, 472 U. S. 675, 682 (1985) (“The language of the statute does not limit §1382 to military bases where access is restricted”). Apel contends that the listed military places have histor-ically been defined as land withdrawn from public use. Not so. Historical sources are replete with references to military “forts” and “posts” that provided services to civilians, and were open for access by them. See, e.g., R. Wooster, Soldiers, Sutlers, and Settlers 64 (1987) (“The frontier forts of Texas were not simply army bases occupied solely by military personnel. They were often bustling communities that attracted merchants, laborers, settlers, and dependents”); Davis, The Sutler at Fort Bridger, 2 Western Hist. Q. 37, 37, 40–41 (Jan. 1971) (describing a 19th-century post in southwestern present Wyoming which included a “sutler,” a civilian merchant who set up shop inside the fort and sold wares both to soldiers and to civilians from outside the base). The common feature of the places described in §1382 is not that they are used exclusively by the military, but that they have defined boundaries and are subject to the command authority of a military officer. That makes sense, because the Solicitor General has informed us that a military commander’s authority is frequently defined by the boundaries of a particular place: When the Department of Defense establishes a base, military commanders assign a military unit to the base, and the commanding officer of the unit becomes the commander of the base. Tr. of Oral Arg. 6–7. Apel responds by invoking our decision in United States v. Phisterer, 94 U. S. 219 (1877) , which held that the term “military station” (in a different statute) did not includea soldier’s off-base home. But Phisterer only confirmsour conclusion that §1382 does not require exclusive use, possession, or control. For there we interpreted “military station” to mean “a place where troops are assembled, where military stores, animate or inanimate, are kept or distributed, where military duty is performed or military protection afforded,—where something, in short, more or less closely connected with arms or war is kept or is to be done.” Id., at 222. To describe a place as “more or less closely connected” with military activities hardly requires that the military hold an exclusive right to the property. Rather, “military duty” and “military protection” are synonymous with the exercise of military jurisdiction. And that, not coincidentally, is precisely how the term “military installation” is used elsewhere in federal law. See, e.g., 10 U. S. C. §2687(g)(1) (defining “military installation” as a “base . . . or other activity under the jurisdiction of the Department of Defense”); §2801(c)(4) (defining “military installation” as a “base . . . or other activity under the jurisdiction of the Secretary of a military department”); 32 CFR §809a.0 (“This part prescribes the commanders’ authority for enforcing order within or near Air Force installations under their jurisdiction and controlling entry to those installations”). Apel also relies on the fact that some Executive Branch documents, including the United States Attorneys’ Man-ual and opinions of the Air Force Judge Advocate General, have said that §1382 requires exclusive possession. Brief for Respondent 44–47. So they have, and that is a point in his favor. But those opinions are not intended to be binding. See Dept. of Justice, United States Attorneys’ Man-ual §1–1.100 (2009) (“The Manual provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal”); 2 Civil Law Opinionsof The Judge Advocate General, United States Air Force 1978–1983 (Preface) (opinions of the Judge Advocate Gen-eral “are good starting points but should not be citedas precedence [sic] without first verifying the validity of the conclusions by independent research”). Their views may reflect overly cautious legal advice based on division in the lower courts. Or they may reflect legal error. Either way, we have never held that the Government’s reading of a criminal statute is entitled to any deference. See Crandon v. United States, 494 U. S. 152, 177 (1990) (Scalia, J., concurring in judgment). Today, as throughout our Nation’s history, there is sig-nificant variation in the ownership status of U. S. mil-itary sites around the world. Some are owned in fee, others are leased. Some are routinely open to the public, others are open for specific occasions or purposes, and no public access whatsoever is permitted on others. Many, including such well-known places as the Washington Navy Yard and the United States Air Force Academy, have roads running through them that are used freely by the public. Nothing in §1382 or our history suggests that the statute does not apply to a military base under the command of the Air Force, merely because the Government has conveyed a limited right to travel through a portion of the base or to assemble in a particular area. B Section 1382 is most naturally read to apply to places with a defined boundary under the command of a military officer. Apel argues, however, that Vandenberg’s commander has no authority on the highways running through the Base or, apparently, in the designated protest area. His arguments more or less reduce to two contentions: that the highways and protest area lie “outside the entrance to [a] closed military installation[ ],” Brief for Respondent 22, and that they are “uncontrolled” spaces where “no military operations are performed,” id., at 23. Neither contention is sound. First, to say that the highway and protest area are “outside” the Vandenberg installation is not a legal ar-gument; it simply assumes the conclusion. Perhaps recognizing as much, Apel tacks: He suggests that because Vandenberg’s operational facilities are surrounded by a fence and guarded by a security checkpoint, the Government has determined that it does not control the rest of the Base. The problem with this argument is that the United States has placed the entire Vandenberg property under the administration of the Air Force, which has defined that property as an Air Force base and designated the Base commander to exercise jurisdiction. Federal law makes the commander responsible “for the protection or security of” “property subject to the jurisdiction, administration, or in the custody of the Department of Defense.” 50 U. S. C. §§797(a)(2), (4); see also 32 CFR §809a.2(a) (“Air Force installation commanders are responsible for protecting personnel and property under their jurisdiction”). And pursuant to that authority, the Base commander has issued an order closing the entire base to the public. Buck Memorandum Re: Closed Base, App. 51; see also 32 CFR §809a.3 (“any directive issued by the commander of a military installation or facility, which includes the parameters for authorized entry to or exit from a military installation, is legally enforceable against all persons”). The fact that the Air Force chooses to securea portion of the Base more closely—be it with a fence, a checkpoint, or a painted green line—does not alter the boundaries of the Base or diminish the jurisdiction of the military commander. As for Apel’s claim that the protest area specifically is uncontrolled, the record is conclusively to the contrary. The Base commander “at all times has retained authority and control over who may access the installation,” including the protest area. Buck Memorandum Re: Protest Activity, App. 58. He has enacted rules to restrict the manner of protests in the designated area. Protest Advisory, App. 53. In particular, he requires two weeks’ notice to schedule a protest and prohibits the distribution of pamphlets or leaflets. Id., at 52–53. The Base com-mander has also publicly stated that persons who are barred from Vandenberg—for whatever reason—may not come onto the Base to protest. Id., at 54. And the District Court found, after hearing testimony, that “the Government exercises substantial control over the designated protest area, including, for example, patrolling the area.” App. to Pet. for Cert. 14a–15a. Apel has never disputed these facts. Instead Apel tells us that, by granting an easement, the military has “relinquished its right to exclude civilians from Highway 1,” Brief for Respondent 36, and that the easement does not “permit[ ]” use by the military, id., at 43. But the easement itself specifically reserves to Vandenberg’s commander the authority to restrict access to the entire Base, including Highway 1, when necessary “to properly protect the interests of the United States,” and likewise “reserves to [the United States] rights-of-way for all purposes.” Easement, App. 36. We simply do not understand how Apel can claim that “[n]othing in the easement contemplates, or even permits, military use or occupation; it provides for exclusive civil use and occupation.” Brief for Respondent 43. Moreover, the Base commander, in an exercise of his command authority, has notified the public that use of the roads is “limited to . . . vehicular travel activity through the base,” which does not include Apel’s protest activity. See Buck Memorandum Re: Closed Base, App. 51. Apel likewise offers no support for his contention that military functions do not occur on the easement highways. The Government has referred us to instances when the commander of Vandenberg has closed the highways to the public for security purposes or when conducting a military launch. Reply Brief 12, and n. 5; Tr. of Oral Arg. 8–9. In any event, there is no indication that Congress intended §1382 to require base commanders to make continuous, uninterrupted use of a place within their jurisdiction, lest they lose authority to exclude individuals who have vandalized military property and been determined to pose a threat to the order and security of the base. In sum, we decline Apel’s invitation to require civilian judges to examine U. S. military sites around the world, parcel by parcel, to determine which have roads, which have fences, and which have a sufficiently important, persistent military purpose. The use-it-or-lose-it rule that Apel proposes would frustrate the administration of military facilities and raise difficult questions for judges, who are not expert in military operations. And it would discourage commanders from opening portions of their bases for the convenience of the public. We think a much better reading of §1382 is that it reaches all property within the defined boundaries of a military place that is under the command of a military officer. III Much of the rest of Apel’s brief is devoted to arguing that §1382 would be unconstitutional as applied to him on this Base. But the Court of Appeals never reached Apel’s constitutional arguments, and we decline to do so in the first instance. Apel also attempts to repackage his First Amendment objections as a statutory interpretation argument based on constitutional avoidance. See Brief for Respondent 54 (“the statute should be interpreted . . . not to apply to peaceful protests on a public road outside of a closed military base over which an easement has been granted and that has been declared a protest zone”). But we do not “interpret” statutes by gerrymandering them with a list of exceptions that happen to describe a party’s case. “The canon [of constitutional avoidance] is not a method of adjudicating constitutional questions by other means.” Clark v. Martinez, 543 U. S. 371, 381 (2005) . Whether §1382 is unconstitutional as applied is a question we need not address. * * * Where a place with a defined boundary is under the administration of a military department, the limits of the “military installation” for purposes of §1382 are coterminous with the commanding officer’s area of responsibility. Those limits do not change when the commander invites the public to use a portion of the base for a road, a school, a bus stop, or a protest area, especially when the commander reserves authority to protect military property by, among other things, excluding vandals and trespassers. 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.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UNITED STATES v. APEL certiorari to the united states court of appeals for the ninth circuit No. 12–1038. Argued December 4, 2013—Decided February 26, 2014 Vandenberg Air Force Base has been designated a “closed base,” meaning that civilians may not enter without express permission. The Air Force has granted an easement over two areas of the Base, with the result that two public highways traverse the Base. Adjacent to one of those highways is an area that the Government has designated for peaceful protests. The Base commander has enacted several restrictions to control the protest area and has issued an advisory stating that anyone who fails to adhere to the protest area policies may be barred from entering the Base. Petitioner Apel was barred from the Base for trespassing and vandalism, but continued to enter the protest area. A Magistrate Judge convicted him of violating 18 U. S. C. §1382, which makes it a crime to reenter a “military. . . installation” after having been ordered not to do so “by any officer or person in command.” On appeal, the Federal District Court rejected Apel’s defense that §1382 does not apply to the designated protest area. The Ninth Circuit reversed. It held that because the easement through Vandenberg deprived the Government of exclusive possession, §1382 did not cover the portion of the Base where Apel’s protest occurred. Held: A “military. . . installation” for purposes of §1382 encompasses the commanding officer’s area of responsibility, and it includes Vandenberg’s highways and protest area. . (a) Contrary to Apel’s argument, §1382 does not require exclusive possession and control. The statute is written broadly to apply to many different kinds of military places, and nothing in its text defines those places in terms of the access granted to the public or the nature of the Government’s possessory interest. See United States v. Albertini, 472 U.S. 675, 682. Nor have military places been defined historically as land withdrawn from public use. The common feature of the places described in §1382 is that they have defined boundaries and are subject to the command authority of a military officer. This conclusion is confirmed by United States v. Phisterer, 94 U.S. 219, 222, which defined the term “military station” as a place “where military duty is performed or military protection afforded.” And while some Executive Branch documents have said that §1382 requires exclusive possession, those opinions are nonbinding, and this Court has never held that the Government’s reading of a criminal statute is entitled to any deference. . (b) Section 1382 applies to any place with a defined boundary that is under the command of a military officer. Apel contends that the highways and protest area are outside the Base because they lie outside fenced areas on the Base, but this argument assumes the conclusion. The United States has placed the entire Vandenberg property under the administration of the Air Force. The Air Force’s choice to secure a portion of the Base more closely does not alter its boundaries or diminish its commander’s jurisdiction. Apel’s further contention that the highways and protest area are uncontrolled spaces where military operations are not performed is contrary to the record: The Base commander has enacted rules to restrict the manner of protests in the designated area and has publicly stated that persons barred from Vandenberg may not enter the Base to protest; the District Court found that the Government exercises substantial control over the protest area; the easement itself reserves to the Base commander the authority to restrict access to the entire Base when necessary and reserves to the United States rights of way for all purposes; and the Base commander has occasionally closed the highways to the public for security purposes or when conducting a military launch. In any event, §1382 does not require base commanders to make continuous, uninterrupted use of a place within their jurisdiction, lest they lose authority to exclude certain individuals. Such a use-it-or-lose-it rule would frustrate the administration of military facilities, raise difficult questions for judges, and discourage commanders from opening portions of their bases for public convenience. . (c) Apel’s argument that the statute was unconstitutional as applied was not reached by the Ninth Circuit and, thus, is not addressed here. P. 13. 676 F.3d 1202, vacated and remanded. Roberts, C. J., delivered the opinion for a unanimous Court. Ginsburg, J., filed a concurring opinion, in which Sotomayor, J., joined. Alito, J., filed a concurring opinion.

The Vandenberg Air Force Base sits on land owned by the United States and administered by the Department of the Air Force, and is the site of sensitive missile and space launch facilities. The base is closed to the public, and the County of Santa Barbara has an easement for a right-of-way for a road and a public road over two areas within the base. The easement provides that use of the roads shall be subject to the authority of the Base commander, and that any person who violates the barment order or reenters within the designated protest area is subject to a citation for a trespass violation. A Magistrate Judge convicted respondent of violating 18 U.S.C. §1382, which makes it a crime to reenter a military installation after having been ordered not to do so by any officer or person in command. The Court of Appeals reversed, holding that the statute does not require the Government to prove that the trespass occurred on the portion of the base allegedly deprived of exclusive possession. Held: 1. Section 1382 applies to a portion of an Air Force base, such as the Vandenberg base, that contains a designated protest zone and is under the command of a military officer. . (a) Nothing in § 1382 or our history suggests that it does not apply to a military base, merely because the Government has conveyed a limited right to travel through the base or to assemble in a particular area. A common feature of the places described in the statute is not that they are used exclusively by the military, but that they have defined boundaries and are subject to military command authority. That makes sense, because the Solicitor General has informed us that a military commander's authority is frequently defined by the boundaries of a particular place: When the Government establishes a base, military commanders assign a military unit to the base and the commanding officer of the unit becomes the base commander. United States v. Phisterer, 94 S.W.A. 94, followed. Pp. 472 U. S. 675-682. (b) The use-it-or-lose-it rule that respondent proposes would frustrate the administration of military facilities and raise difficult questions for judges, who are not expert in military operations, and would discourage commanders from opening portions of their bases for the convenience of the public. Here, where a place with a defined boundary is under military department, the limits of the term "military installation" for purposes of the statute are coterminous with that officer's area of responsibility. Those limits do not change when the commander invites the public to use a portion thereof for a highway, a school, a bus stop, or a protest area, especially when he reserves authority to protect military property by, among other things, excluding vandals and trespassers. As for the claim that the protest area specifically is uncontrolled, the record is conclusively to the contrary. Respondent has never disputed the facts that the military has withdrawn its right to exclude civilians from Highway 1, that the easement does not permit such use, or that the base com-mander lacks authority to restrict access to the entire Base, including Highway 1. Moreover, the County has notified the public that no vehicular travel activity through the Base is limited to the protest activity, which does not include respondent's protest activity. Furthermore, there is no indication that Congress intended the statute to require base commanders to make continuous, uninterrupted use of a place within their jurisdiction, lest they lose authority to exclude individuals who have vandalized military property and been determined to pose a threat to the order and security. See Clark v. Martinez, 371 S. C. 381. Whether the use-i-mandering method of adjudicating constitutional questions has been applied to this case as a constitutional method is a question that need not be addressed. 2. Where a place has defined boundary under administration of the military department and the military commander has retained authority and control over who may access the installation, that limits of that boundary for purposes are not changed when he invites the general public to utilize a portion to be a road, school, bus stop or protest area; especially when, as in this case, the commander reserves authority under §1381 to protect the military property. This Court declines respondent's invitation to require civilian judges to examine United States military sites around the world, parcel by parcel, to determine which have roads, which have fences, and which have a sufficiently important, persistent military purpose. Such a reading is a much better reading is that it reaches all property within the defined boundaries of military bases. But a much, better reading than that is what this Court uses to apply to respondent on this Base. Although the Court has never reached respondent on the first base, this Court never reached the constitutional question whether a constitutional gackage has been granted by the First Amendment, and whether the canon of First Amendment statutes has been

2013_12-1371

https://www.oyez.org/cases/2013/12-1371

. Recognizing that “[f]irearms and domestic strife are a potentially deadly combination,” United States v. Hayes, 555 U. S. 415, 427 (2009) , Congress forbade the possession of firearms by anyone convicted of “a misdemeanor crime of domestic violence.” 18 U. S. C. §922(g)(9). The respondent, James Alvin Castleman, pleaded guilty to the misdemeanor offense of having “intentionally or knowingly cause[d] bodily injury to” the mother of his child. App.27. The question before us is whether this conviction qualifies as “a misdemeanor crime of domestic violence.” We hold that it does. I A This country witnesses more than a million acts of domestic violence, and hundreds of deaths from domestic violence, each year.[1] See Georgia v. Randolph, 547 U. S. 103, 117–118 (2006). Domestic violence often escalates in severity over time, see Brief for Major Cities Chiefs Association et al. as Amici Curiae 13–15; Brief for National Network to End Domestic Violence et al. as Amici Curiae 9–12, and the presence of a firearm increases the likelihood that it will escalate to homicide, see id., at 14–15; Campbell et al., Assessing Risk Factors for Intimate Partner Homicide, DOJ, Nat. Institute of Justice J., No. 250, p. 16 (Nov. 2003) (“When a gun was in the house, an abused woman was 6 times more likely than other abused women to be killed”). “[A]ll too often,” as one Senator noted during the debate over §922(g)(9), “the only difference between a battered woman and a dead woman is the presence of a gun.” 142 Cong. Rec. 22986 (1996) (statement of Sen. Wellstone). Congress enacted §922(g)(9), in light of these sobering facts, to “ ‘close [a] dangerous loophole’ ” in the gun control laws: While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors. Hayes, 555 U. S., at 418, 426. Section 922(g)(9) provides, as relevant, that any person “who has been convicted . . . of a misdemeanor crime of domestic violence” may not “possess in or affecting commerc[e] any firearm or ammunition.” With exceptions that do not apply here, the statute defines a “misdemeanor crime of domestic violence” as “an offense that . . . (i) is a misdemeanor under Fed-eral, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated toa spouse, parent, or guardian of the victim.” §921(a)(33)(A). This case concerns the meaning of one phrase in this definition: “the use . . . of physical force.” B In 2001, Castleman was charged in a Tennessee court with having “intentionally or knowingly cause[d] bodily injury to” the mother of his child, in violation of Tenn. Code Ann. §39–13–111(b) (Supp. 2002). App. 27. He pleaded guilty. Id., at 29. In 2008, federal authorities learned that Castleman was selling firearms on the black market. A grand jury in the Western District of Tennessee indicted him on two counts of violating §922(g)(9) and on other charges not relevant here. Id., at 13–16. Castleman moved to dismiss the §922(g)(9) charges, arguing that his Tennessee conviction did not qualify as a “misdemeanor crime of domestic violence” because it did not “ha[ve], as an element, the use . . . of physical force,” §921(a)(33)(A)(ii). The District Court agreed, on the the-ory that “the ‘use of physical force’ for §922(g)(9) purposes” must entail “violent contact with the victim.” App. to Pet. for Cert. 40a. The court held that a conviction under the relevant Tennessee statute cannot qualify as a “misdemeanor crime of domestic violence” because one can cause bodily injury without “violent contact”—for example, by “deceiving [the victim] into drinking a poisoned beverage.” Id., at 41a. A divided panel of the U. S. Court of Appeals for the Sixth Circuit affirmed, by different reasoning. 695 F. 3d 582 (2012). The majority held that the degree of physical force required by §921(a)(33)(A)(ii) is the same as required by §924(e)(2)(B)(i), which defines “violent felony.” Id., at 587. Applying our decision in Johnson v. United States, 559 U. S. 133 (2010) , which held that §924(e)(2)(B)(i) re-quires “violent force,” id., at 140, the majority held that Castleman’s conviction did not qualify as a “misdemeanor crime of domestic violence” because Castleman could have been convicted for “caus[ing] a slight, nonserious physical injury with conduct that cannot be described as violent.” 695 F. 3d, at 590. Judge McKeague dissented, arguing both that the majority erred in extending Johnson’s definition of a “violent felony” to the context of a “misdemeanor crime of domestic violence” and that, in any event, Castle-man’s conviction satisfied the Johnson standard. Id., at 593–597. The Sixth Circuit’s decision deepened a split of author-ity among the Courts of Appeals. Compare, e.g., United States v. Nason, 269 F. 3d 10, 18 (CA1 2001) (§922(g)(9) “encompass[es] crimes characterized by the application of any physical force”), with United States v. Belless, 338 F. 3d 1063, 1068 (CA9 2003) (§922(g)(9) covers only “the violent use of force”). We granted certiorari to resolve this split, 570 U. S. ___ (2013), and now reverse the Sixth Cir-cuit’s judgment. II A “It is a settled principle of interpretation that, absent other indication, ‘Congress intends to incorporate the well-settled meaning of the common-law terms it uses.’ ” Sekhar v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Seeing no “other indication” here, we hold that Congress incorporated the common-law meaning of “force”—namely, offensive touching—in §921(a)(33)(A)’s definition of a “mis-demeanor crime of domestic violence.” Johnson resolves this case in the Government’s favor—not, as the Sixth Circuit held, in Castleman’s. In Johnson, we considered whether a battery conviction was a “violent felony” under the Armed Career Criminal Act (ACCA), §924(e)(1). As here, ACCA defines such a crime as one that “has as an element the use . . . of physical force,” §924(e)(2)(B)(i). We began by observing that at common law, the element of force in the crime of battery was “satisfied by even the slightest offensive touching.” 559 U. S., at 139 (citing 3 W. Blackstone, Commentaries on the Laws of England 120 (1768)).[2] And we recognized the general rule that “a common-law term of art should be given its established common-law meaning,” except “where that meaning does not fit.” 559 U. S., at 139. We declined to read the common-law meaning of “force” into ACCA’s definition of a “violent felony,” because we found it a “comical misfit with the defined term.” Id., at 145; see United States v. Stevens, 559 U. S. 460, 474 (2010) (“[A]n unclear definitional phrase may take meaning from the term to be defined”). In defining a “ ‘violent felony,’ ” we held, “the phrase ‘physical force’ ” must “mea[n] violent force.” Johnson, 559 U. S., at 140. But here, the common-law meaning of “force” fits perfectly: The very reasons we gave for rejecting that meaning in defining a “violent felony” are reasons to embrace it in defining a “misdemeanor crime of domestic violence.”[3] First, because perpetrators of domestic violence are “routinely prosecuted under generally applicable assault or battery laws,” Hayes, 555 U. S., at 427, it makes sense for Congress to have classified as a “misdemeanor crime of domestic violence” the type of conduct that supports a common-law battery conviction. Whereas it was “unlikely” that Congress meant to incorporate in the definition of a “ ‘violent felony’ a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor,” Johnson, 559 U. S., at 141, it is likely that Congress meant to incorporate that misdemeanor-specific meaning of “force” in defining a “misdemeanor crime of domestic violence.” Second, whereas the word “violent” or “violence” standing alone “connotes a substantial degree of force,” id., at 140,[4] that is not true of “domestic violence.” “Domestic violence” is not merely a type of “violence”; it is a term of art encompassing acts that one might not characterize as “violent” in a nondomestic context. See Brief for National Network to End Domestic Violence et al. as Amici Curiae 4–9; DOJ, Office on Violence Against Women, Domestic Violence (defining physical forms of domestic violence to include “[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling”), online at http://www.ovw.usdoj.gov/domviolence.htm.[5] Indeed, “most physical assaults committed against women and men by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping, and hitting.” DOJ, P. Tjaden & N. Thoennes, Extent, Nature and Consequences of Intimate Partner Violence 11 (2000). Minor uses of force may not constitute “violence” in the generic sense. For example, in an opinion that we cited with approval in Johnson, the Seventh Circuit noted that it was “hard to describe . . . as ‘violence’ ” “a squeeze of the arm [that] causes a bruise.” Flores v. Ashcroft, 350 F. 3d 666, 670 (2003). But an act of this nature is easy to describe as “domestic violence,” when the accumulation of such acts over time can subject one intimate partner to the other’s control. If a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a “misdemeanor crime of domestic violence.” Justice Scalia’s concurrence discounts our reference to social-science definitions of “domestic violence,” including those used by the organizations most directly engaged with the problem and thus most aware of its dimensions. See post, at 8–11. It is important to keep in mind, how-ever, that the operative phrase we are construing is not “domestic violence”; it is “physical force.” §921(a)(33)(A). “Physical force” has a presumptive common-law meaning, and the question is simply whether that presumptive meaning makes sense in defining a “misdemeanor crime of domestic violence.”[6] A third reason for distinguishing Johnson’s definition of “physical force” is that unlike in Johnson—where a determination that the defendant’s crime was a “violent felony” would have classified him as an “armed career criminal”—the statute here groups those convicted of “misdemeanor crimes of domestic violence” with others whose conduct does not warrant such a designation. Section 922(g) bars gun possession by anyone “addicted to any controlled substance,” §922(g)(3); by most people who have “been admitted to the United States under a nonimmigrant visa,” §922(g)(5)(B); by anyone who has renounced United States citizenship, §922(g)(7); and by anyone subject to a domestic restraining order, §922(g)(8). Whereas we have hesitated (as in Johnson) to apply the Armed Career Criminal Act to “crimes which, though dangerous, are not typically committed by those whom one normally labels ‘armed career criminals,’ ” Begay v. United States, 553 U. S. 137, 146 (2008) , we see no anomaly in grouping domestic abusers convicted of generic assault or battery offenses together with the others whom §922(g) disqualifies from gun ownership. An additional reason to read the statute as we do is that a contrary reading would have rendered §922(g)(9) inoperative in many States at the time of its enactment. The “assault or battery laws” under which “domestic abusers were . . . routinely prosecuted” when Congress enacted §922(g)(9), and under which many are still prosecuted today, Hayes, 555 U. S., at 427, fall generally into two categories: those that prohibit both offensive touching and the causation of bodily injury, and those that prohibit only the latter. See Brief for United States 36–38. Whether or not the causation of bodily injury necessarily entails violent force—a question we do not reach—mere offensive touching does not. See Johnson, 559 U. S., at 139–140. So if offensive touching did not constitute “force” under §921(a)(33)(A), then §922(g)(9) would have been ineffec-tual in at least 10 States—home to nearly thirty percent of the Nation’s population[7]—at the time of its enactment. See post, at 6, and n. 5 (Scalia, J., concurring in part and concurring in judgment) (acknowledging that §922(g)(9) would have been inapplicable in California and nine other States if it did not encompass offensive touching); App. to Brief for United States 10a–16a (listing statutes prohibiting both offensive touching and the causation of bodily injury, only some of which are divisible); cf. Hayes, 555 U. S., at 427 (rejecting an interpretation under which “§922(g)(9) would have been ‘a dead letter’ in some two-thirds of the States from the very moment of its enactment”). In sum, Johnson requires that we attribute the common-law meaning of “force” to §921(a)(33)(A)’s definition of a “misdemeanor crime of domestic violence” as an offense that “has, as an element, the use or attempted useof physical force.” We therefore hold that the requirement of “physical force” is satisfied, for purposes of §922(g)(9), by the degree of force that supports a common-law battery conviction. B Applying this definition of “physical force,” we conclude that Castleman’s conviction qualifies as a “misdemeanor crime of domestic violence.” In doing so, we follow the analytic approach of Taylor v. United States, 495 U. S. 575 (1990) , and Shepard v. United States, 544 U. S. 13 (2005) . We begin with Taylor’s categorical approach, under which we look to the statute of Castleman’s conviction to determine whether that conviction necessarily “ha[d], as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon,” §921(a)(33)(A). The Tennessee statute under which Castleman was convicted made it a crime to “commi[t] an assault . . . against” a “family or household member”—in Castleman’s case, the mother of his child. Tenn. Code Ann. §39–13–111(b). A provision incorporated by reference, §39–13–101, defined three types of assault: “(1) [i]ntentionally, knowingly or recklessly caus[ing] bodily injury to another; (2) [i]ntentionally or knowingly caus[ing] another to reasonably fear imminent bodily injury; or (3) [i]ntentionally or knowingly caus[ing] physical contact with another” in a manner that a “reasonable person would regard . . . as extremely offensive or provocative.” §39–13–101(a). It does not appear that every type of assault defined by §39–13–101 necessarily involves “the use or attempted use of physical force, or the threatened use of a deadly weapon,” §921(a)(33)(A). A threat under §39–13–101(2) maynot necessarily involve a deadly weapon, and the merely reckless causation of bodily injury under §39–13–101(1) may not be a “use” of force.[8] But we need not decide whether a domestic assault conviction in Tennessee categorically constitutes a “misdemeanor crime of domestic violence,” because the parties do not contest that §39–13–101 is a “ ‘divisible statute,’ ” Descamps v. United States, 570 U. S. ___, ___ (2013) (slip op., at 1). We may accordingly apply the modified categorical approach, consulting the indictment to which Castleman pleaded guilty in order to determine whether his conviction did entail the elements necessary to constitute the generic federal offense. Id., at ___ (slip op., at 1–2); see Shepard, 544 U. S., at 26. Here, that analysis is straightforward: Castleman pleaded guilty to having “intentionally or knowingly cause[d] bodily injury” to the mother of his child, App. 27, and the knowing or intentional causation of bodily injury necessarily involves the use of physical force. First, a “bodily injury” must result from “physical force.” Under Tennessee law, “bodily injury” is a broad term: It “includes a cut, abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty.” Tenn. Code Ann. §39–11–106(a)(2) (1997). Justice Sca-lia’s concurrence suggests that these forms of injury ne-cessitate violent force, under Johnson’s definition of that phrase. Post, at 3. But whether or not that is so—aquestion we do not decide—these forms of injury do necessitate force in the common-law sense. The District Court thought otherwise, reasoning that one can cause bodily injury “without the ‘use of physical force’ ”—for example, by “deceiving [the victim] into drinking a poisoned beverage, without making contact of any kind.” App. to Pet. for Cert. 41a. But as we explained in Johnson, “physical force” is simply “force exerted by and through concrete bodies,” as opposed to “intellectual force or emotional force.” 559 U. S., at 138. And the common-law concept of “force” encompasses even its indirect ap-plication. “Force” in this sense “describ[es] one of the elements of the common-law crime of battery,” id., at 139, and “[t]he force used” in battery “need not be applied directly to the body of the victim.” 2 W. LaFave, Substan-tive Criminal Law §16.2(b) (2d ed. 2003). “[A] battery may be committed by administering a poison or by infecting with a disease, or even by resort to some intangible substance,” such as a laser beam. Ibid. (footnote omitted) (citing State v. Monroe, 121 N. C. 677, 28 S. E. 547 (1897) (poison); State v. Lankford, 29 Del. 594, 102 A. 63 (1917) (disease); Adams v. Commonwealth, 33 Va. App. 463, 534 S. E. 2d 347 (2000) (laser beam)). It is impossible to cause bodily injury without applying force in the common-law sense. Second, the knowing or intentional application of force is a “use” of force. Castleman is correct that under Leocal v. Ashcroft, 543 U. S. 1 (2004) , the word “use” “conveys the idea that the thing used (here, ‘physical force’) has been made the user’s instrument.” Brief for Respondent 37. But he errs in arguing that although “[p]oison may have ‘forceful physical properties’ as a matter of organic chemistry, . . . no one would say that a poisoner ‘employs’ force or ‘carries out a purpose by means of force’ when he orshe sprinkles poison in a victim’s drink,” ibid. The “useof force” in Castleman’s example is not the act of “sprinkl[ing]” the poison; it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter. Under Castleman’s logic, after all, one could say that pulling the trigger on a gun is not a “use of force” because it is the bullet, not the trigger, that actually strikes the victim. Leocal held that the “use” of force must entail “a higher degree of intent than negligent or merely accidental conduct,” 543 U. S., at 9; it did not hold that the word “use” somehow alters the meaning of “force.” Because Castleman’s indictment makes clear that the use of physical force was an element of his conviction, that conviction qualifies as a “misdemeanor crime of domestic violence.” III We are not persuaded by Castleman’s nontextual arguments against our interpretation of §922(g)(9). A First, Castleman invokes §922(g)(9)’s legislative history to suggest that Congress could not have intended for the provision to apply to acts involving minimal force. But to the extent that legislative history can aid in the inter-pretation of this statute, Castleman’s reliance on it is unpersuasive. Castleman begins by observing that during the debate over §922(g)(9), several Senators argued that the provision would help to prevent gun violence by perpetrators of severe domestic abuse. Senator Lautenberg referred to “serious spousal or child abuse” and to “violent individuals”; Senator Hutchison to “ ‘people who batter their wives’ ”; Senator Wellstone to people who “brutalize” their wives or children; and Senator Feinstein to “severe and recurring domestic violence.” 142 Cong. Rec. 22985–22986, 22988. But as we noted above, see supra, at 2, the impetus of §922(g)(9) was that even perpetrators of severe domestic violence are often convicted “under generally applicable assault or battery laws.” Hayes, 555 U. S., at 427. So nothing about these Senators’ isolated references to severe domestic violence suggests that they would not have wanted §922(g)(9) to apply to a misdemeanor assault conviction like Castleman’s. Castleman next observes that §922(g)(9) is the product of a legislative compromise. The provision originally barred gun possession for any “crime of domestic violence,” defined as any “felony or misdemeanor crime of violence, regardless of length, term, or manner of punishment.” 142 Cong. Rec. 5840. Congress rewrote the provision to require the use of physical force in response to the concern “that the term crime of violence was too broad, and could be interpreted to include an act such as cutting up a credit card with a pair of scissors,” id., at 26675. See Hayes, 555 U. S., at 428. Castleman would have us conclude that Congress thus meant “to narrow the scope of the statute to convictions based on especially severe conduct.” Brief for Respondent 24. But all Congress meant to do was address the fear that §922(g)(9) might be triggered by offenses in which no force at all was directed at a person. As Senator Lautenberg noted, the revised text was not only “more precise” than the original but also “probably broader.” 142 Cong. Rec. 26675. B We are similarly unmoved by Castleman’s invocation of the rule of lenity. Castleman is correct that our “construction of a criminal statute must be guided by the need for fair warning.” Crandon v. United States, 494 U. S. 152, 160 (1990) . But “the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress intended.” Barber v. Thomas, 560 U. S. 474, 488 (2010) (citation and internal quotation marks omitted). That is not the case here. C Finally, Castleman suggests—in a single paragraph—that we should read §922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms. But Castleman has not challenged the constitutionality of §922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman’s cursory nod to constitutional avoidance concerns. * * * Castleman’s conviction for having “intentionally or knowingly cause[d] bodily injury to” the mother of his child qualifies as a “misdemeanor crime of domestic violence.” The judgment of the United States Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 See Dept. of Justice (DOJ), Bureau of Justice Statistics (BJS), J. Truman, L. Langton, & M. Planty, Criminal Victimization 2012 (Oct. 2013) (Table 1) (1,259,390 incidents of domestic violence in 2012), online at http://www.bjs.gov/content/pub/pdf/cv12.pdf (all Internet ma-terials as visited Mar. 19, 2014, and available in Clerk of Court’scase file); DOJ, BJS, C. Rennison, Crime Data Brief, Intimate Partner Violence, 1993–2001, p. 1 (Feb. 2003) (violence among intimate partners caused deaths of 1,247 women and 440 men in 2000), online at http://‌www.bjs.gov/content/pub/pdf/ipv01.pdf. 2 We explained that the word “physical” did not add much to the word “force,” except to distinguish “force exerted by and through concrete bodies . . . from, for example, intellectual force or emotional force.” , 559 U. S., at 138. 3 specifically reserved the question whether our definition of “physical force” would extend to . 559 U. S., at 143–144. And these reasons for declining to extend ’s definition to §922(g)(9) serve equally to rebut the “presumption of consistent usage” on which ’s concurrence heavily relies, at1–2, 4. 4 This portion of ’s analysis relied heavily on v. , , in which we interpreted the meaning of a “crime of violence” under . As in and here, the statute defines a “crime of violence” in part as one “that has as an element the use . . . of physical force,” §16(a). In support of our holding in , we quoted ’s observation that “ ‘[t]he ordinary meaning of [a “crime of violence”] . . . suggests a category of violent, active crimes.’ ” 559 U. S., at 140 (quoting 543 U. S., at 11). 5 See also A. Ganley, Understanding Domestic Violence, in Im-proving the Health Care Response to Domestic Violence: A Re-source Manual for Health Care Providers 18 (2d ed. 1996),online at http://www.‌futureswithoutviolence.org / userfiles / file/ HealthCare / improving_healthcare_manual_1.pdf (physical forms of domestic violence “may include spitting, scratching, biting, grabbing, shaking, shoving, pushing, restraining, throwing, twisting, [or] slapping”); M. McCue, Domestic Violence: A Reference Handbook 6 (1995) (noting that physical forms of domestic violence “may begin with relatively minor assaults such as painful pinching or squeezing”). 6 The concurrence’s reliance on definitions of “domestic violence” in other statutory provisions, see at 8, and n. 7, is similarly unpersuasive. These other provisions show that when Congress wished to define “domestic violence” as a type of “violence” , it knew how to do so. That it did not do so here suggests, if anything, that it did not mean to. See, v., . This also answers the concurrence’s suggestion, at 10, that our holding will somehow make it difficult for Congress to define “domestic violence”—where it wants to—as requiring violent force. 7 See U. S. Census Bureau, Time Series of Intercensal State Population Estimates: April 1, 1990 to April 1, 2000, online at http://www.‌census.gov/popest/data/intercensal/st-co/files/CO-EST2001-12-00.pdf (esti-mating state and national populations as of July 1, 1996). 8 We held in that “ ‘use’ requires active employment,” rather “than negligent or merely accidental conduct.” 543 U. S. at 9. Al-though reserved the question whether a reckless application of force could constitute a “use” of force, at 13, the Courts of Appeals have almost uniformly held that recklessness is not sufficient. See v. , 606 F. 3d 1317, 1335–1336 (CA11 2010);v. , 548 F. 3d 557, 560 (CA7 2008); v. , 527 F. 3d 1110, 1124 (CA10 2008); v. , 487 F. 3d 607, 615–616 (CA8 2007); v. , 469 F. 3d 496, 499 (CA6 2006);v. , 466 F. 3d 1121, 1127–1132 (CA9 2006) (en banc); v. , 455 F. 3d 465, 468–469 (CA4 2006); v. , 418 F. 3d 260, 263–265 (CA3 2005) (Alito, J.); v. , 326 F. 3d 367, 373 (CA2 2003); v. , 243 F. 3d 921, 926 (CA5 2001). But see v. , 644 F. 3d 12, 19–20 (CA1 2011) (noting that the First Circuit had not resolved the recklessness issue under , but declining to extend ’s analysis to §922(g)(9)).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UNITED STATES v. CASTLEMAN certiorari to the united states court of appeals for the sixth circuit No. 12–1371. Argued January 15, 2014—Decided March 26, 2014 Respondent Castleman moved to dismiss his indictment under 18 U. S. C. §922(g)(9), which forbids the possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence.” He argued that his previous conviction for “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, App. 27, did not qualify as a “misdemeanor crime of domestic violence” because it did not involve “the use or attempted use of physical force,” 18 U. S. C. §921(a)(33)(A)(ii). The District Court agreed, reasoning that “physical force” must entail violent contact and that one can cause bodily injury without violent contact, e.g., by poisoning. The Sixth Circuit affirmed on a different rationale. It held that the degree of physical force required for a conviction to constitute a “misdemeanor crime of domestic violence” is the same as that required for a “violent felony” under the Armed Career Criminal Act (ACCA), §924(e)(2)(B)(i)—namely, violent force—and that Castleman could have been convicted for causing slight injury by nonviolent conduct. Held: Castleman’s conviction qualifies as a “misdemeanor crime of domestic violence.” . (a) Section 922(g)(9)’s “physical force” requirement is satisfied by the degree of force that supports a common-law battery conviction—namely, offensive touching. Congress presumably intends to incorporate the common-law meaning of terms that it uses, and nothing suggests Congress intended otherwise here. The Sixth Circuit relied upon Johnson v. United States, 559 U.S. 133, in which the common-law meaning of “force” was found to be a “comical misfit,” id., at 145, when read into ACCA’s “violent felony” definition. But Johnson resolves this case in the Government’s favor: The very reasons for rejecting the common-law meaning in Johnson are reasons to embrace it here. First, whereas it was “unlikely” that Congress meant to incorporate in ACCA’s “violent felony” definition “a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor,” id., at 141, it is likely that Congress meant to incorporate the misdemeanor-specific meaning of “force” in defining a “misdemeanor crime of domestic violence.” Second, whereas the word “violent” or “violence” standing alone “connotes a substantial degree of force,” id., at 140, that is not true of “domestic violence,” which is a term of art encompassing acts that one might not characterize as “violent” in a nondomestic context. Third, whereas this Court has hesitated to apply ACCA to “crimes which, though dangerous, are not typically committed by those whom one normally labels ‘armed career criminals,’ ” Begay v. United States, 553 U.S. 137, 146, there is no anomaly in grouping domestic abusers convicted of generic assault or battery offenses together with others whom §922(g) disqualifies from gun ownership. In addition, a contrary reading would have made §922(g)(9) inoperative in at least ten States when it was enacted. . (b) Under this definition of “physical force,” Castleman’s conviction qualifies as a “misdemeanor crime of domestic violence.” The application of the modified categorical approach—consulting Castleman’s state indictment to determine whether his conviction entailed the elements necessary to constitute the generic federal offense—is straightforward. Castleman pleaded guilty to “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, and the knowing or intentional causation of bodily injury necessarily involves the use of physical force. First, a “bodily injury” must result from “physical force.” The common-law concept of “force” encompasses even its indirect application, making it impossible to cause bodily injury without applying force in the common-law sense. Second, the knowing or intentional application of force is a “use” of force. Leocal v. Ashcroft, 543 U.S. 1, distinguished. . (c) Castleman claims that legislative history, the rule of lenity, and the canon of constitutional avoidance weigh against this Court’s interpretation of §922(g)(9), but his arguments are unpersuasive. . 695 F.3d 582, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined.

Title 18 U.S. C. §922(g)(9) provides, as relevant, that any person convicted of a misdemeanor crime of domestic violence may not possess any firearm or ammunition. With exceptions, the statute defines a misdemeanor as having, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, guardian, or guardian of the victim, by a person with whom the victim shares a child in common, by another cohabiting with or has cohabited with the victim as a spouse or parent, or by another person similarly situated toa spouse. Pursuant to the statute, respondent Castleman pleaded guilty to the misdemeanor offense of havingintentionally or knowingly cause bodily injury to the mother of his child. The District Court dismissed the charges on the ground that the conviction did not entail physical force. The Court of Appeals affirmed, by different reasoning. Held: The statute does not incorporate the common-law meaning of the word "force" in §921(a)(33)(A)(i), which defines a "misdemeanor crime" as an offense that, as such, has an element the use of "physical force." Johnson v. United States, 559 U. S. 133. . (a) The common law meaning of force is satisfied by the degree of force that supports a common law battery conviction. Johnson resolves this case in the Government's favor, not, as the Sixth Circuit held, in Castleman's. Pp. 569. (b) The statute here defines such a crime as one that has as an "element" the use and attempted use (physical force), and here the statute here groups those convicted of such crimes with others whose conduct does not warrant such a designation. The fact that every type of assault necessarily involves a threat of a threatened weapon does not necessarily mean that a reckless use of force may necessarily involve a domestic violence use. Here, the knowing or intentional causation of bodily injury necessarily involves the use. First, a physical force is not merely a type of violence; it is a term of art encompassing acts that one might not characterize as "violent" in a nondomestic context. Second, whereas the word, "violent," standing alone, connotes a substantial force, that is not true of "domestic violence.” Third, an act of this nature is easy to describe as domestic violence when the accumulation of such acts over time can subject one intimate partner to the other's control. If a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a misdemeanor. And fourth, knowing and intentional application of the force is a use.... that is a force of force. In this case, Castleman was convicted of having intentional or knowingly caused bodily injury, and his conviction is consistent with his constitutional right to keep and bear arms.. 595 F. 3d 582, reversed and remanded. PER CURIAM. The judgment below is reversed. JUSTICE WHITE, joined by JUSTICE BLACKMUN, JUSTICE REHNQUIST, and JUSTICE STEVENS, concluded in Part III that: 1. The statute in question qualifies as a commonlaw battery conviction, since it affords a cause of action that is distinguishable from a misdemeanor assault conviction. Under United States v. Hayes, 555 S. 415, ___ (slip op., at 3), it is impossible to cause such an injury without applying force in the common law sense, since the operative phrase is not a literal one, but is a concept of force, and since the word for it has a presumptive commonlaw meaning. Under Leocal v. Ashcroft,, it conveys the idea that the thing used (here, physical force) has been made the user's instrument. However, unlike in Johnson, where a determination that the defendant's crime was a "violent felony" would have classified him as anarmed career criminal, this statute groups those who have committed such a violent felony with others who do not warrant the designation, and here in this case there is no indication that it would have rendered the statute inoperative in many States at the time of its enactment. P.. 2. In light of the above reasons for declining to extend the statute to the context of a nonfederal offense such as Castleman, who pleaded guilty, his conviction does not meet the requirements of Johnson. Johnson requires that, for purposes of the statute under the Armed Career Criminal Act (ACA), the requirement of "Physical Force" is satisfied, for purposes of the statutory definition of a "mis-demeanor" crime. Thus, the law here defines a felony as one with, inter alia, a use or intentional use of

2013_12-1408

https://www.oyez.org/cases/2013/12-1408

. This case presents the question whether severance pay-ments made to employees terminated against their will are taxable wages under the Federal Insurance Contri-butions Act (FICA), 26 U. S. C. §3101 et seq. The Court of Appeals for the Sixth Circuit held that the payments are not wages taxed by FICA. To reach its holding, the Court of Appeals relied not on FICA’s definition of wages but on §3402(o) of the Internal Revenue Code, a provision governing income-tax withholding. That conclusion, for the reasons to be discussed, was incorrect. FICA’s broad definition of wages includes the severance payments made here. And §3402(o) does not alter that definition. Section 3402(o) instructs that any severance payment “shall be treated as if it were a payment of wages.” According to the Court of Appeals, §3402(o) suggeststhat the definition of wages for income-tax withholding does not extend to severance payments; and so, the argument continues, severance payments also must be beyond the terms of FICA’s similar definition. But §3402(o) is entirely compatible with the proposition that some or all payments do fall within the broad definition of the term wages. Section 3402(o) was enacted in response to a narrow, specific problem regarding income-tax withholding. In addition, were the Court to rule that the severance payments made here are exempt from FICA taxation but not from withholding under §3402 for income-tax pur-poses, it would contravene the holding in Rowan Cos. v. United States, 452 U. S. 247 (1981) , which held there should be congruence in the rules for FICA and income-tax withholding. I Quality Stores, Inc., an agricultural-specialty retailer, entered bankruptcy proceedings in 2001. Before and following the filing of an involuntary Chapter 11 bankruptcy petition, respondents Quality Stores and affiliated companies, all referred to here as Quality Stores, terminated thousands of employees. The employees received severance payments, which all parties to this case stipulate were the result of a reduction in work force or discontinuance of a plant or operation. The payments were made pursuant to one of two different termination plans. (For reasons later to be explained, it should be noted that neither termination plan tied severance payments to the receipt of state unemployment compensation.) Under the first plan, terminated employees received severance pay based on job grade and management level. The president and chief executive officer received 18 months of severance pay, senior managers received 12 months of severance pay, and other employees received one week of severance pay for each year of service. The second plan was designed to facilitate Quality Stores’ postbankruptcy operations and encourage employees to put off their job searches. To receive severance pay, employees had to complete their last day of service as determined by the employer. Officers received between 6 and 12 months of severance pay, and full-time employees and employees paid by the hour received one week of severance pay for every year of service if the employees had been employed for at least two years, up to a stated maximum of severance pay. Workers who had been employed for less than two years received a week of severance pay. Quality Stores reported the severance payments as wages on W–2 tax forms, paid the employer’s required share of FICA taxes, and withheld employees’ share of FICA taxes. Then Quality Stores asked 3,100 former employees to allow it to file FICA tax refund claims for them. About 1,850 former employees agreed to allow Qual-ity Stores to pursue FICA refunds. On its own behalf and on behalf of the former employees, Quality Stores filed for a refund of $1,000,125 in FICA taxes. The Internal Revenue Service neither allowed nor denied the claim. Quality Stores initiated a proceeding in the Bankruptcy Court seeking a refund of the disputed amount. The Bankruptcy Court granted summary judgment in its favor. The District Court and Court of Appeals for the Sixth Circuit affirmed, concluding that severance payments are not “wages” under FICA. See In re Quality Stores, Inc., 693 F. 3d 605 (2012). Other Courts of Appeals, however, have concluded that at least some severance payments do constitute wages subject to FICA tax. See, e.g., CSX Corp. v. United States, 518 F. 3d 1328 (CA Fed. 2008); University of Pittsburgh v. United States, 507 F. 3d 165 (CA3 2007); North Dakota State Univ. v. United States, 255 F. 3d 599 (CA8 2001). The United States, claiming that the FICA taxes must be withheld, sought review here; and certiorari was granted, 570 U. S. ___ (2013). II A The first question is whether FICA’s definition of “wages” encompasses severance payments. The beginning pointis the relevant statutory text. Mississippi ex rel. Hoodv. AU Optronics Corp., 571 U. S. ___, ___ (2014) (slip op., at 5). To fund benefits provided by the Social Security Act and Medicare, FICA taxes “wages” paid by an employer or re-ceived by an employee “with respect to employment.” 26 U. S. C. §§3101(a), (b), 3111(a), (b). Congress chose to define wages under FICA “broadly.” Mayo Foundation for Medical Ed. and Research v. United States, 562 U. S. ___, ___ (2011) (slip op., at 2). FICA defines “wages” as “all remuneration for employment, including the cash value of all remuneration (including benefits) paid in any medium other than cash.” §3121(a). The term “employment” encompasses “any service, of whatever nature, performed . . . by an employee for the person employing him.” §3121(b). Under this definition, and as a matter of plain meaning, severance payments made to terminated employees are “remuneration for employment.” Severance payments are, of course, “remuneration,” and common sense dictates that employees receive the payments “for employment.” Severance payments are made to employees only. It wouldbe contrary to common usage to describe as a severance payment remuneration provided to someone who has not worked for the employer. Severance payments are made in consideration for employment—for a “service . . . performed” by “an employee for the person employing him,” per FICA’s definition of the term “employment.” Ibid. In Social Security Bd. v. Nierotko, 327 U. S. 358 (1946) , the Court interpreted the term “wages” in the Social Security statutory context to have substantial breadth. In that case a worker, who had been wrongfully terminated, sought to have his backpay counted as taxable wages for the purpose of obtaining credits under the Social Security system. The Court stated that the term “service,” used with respect to Social Security, “means not only work actually done but the entire employer-employee relationship for which compensation is paid to the employee by the employer.” Id., at 365–366. As confirmation of that principle, severance payments often vary, as they did here, according to the function and seniority of the particular employee who is terminated. For example, under both termination plans, Quality Stores employees were given severance payments based on job grade and management level. And under the second termination plan, nonofficer employees who had served at least two years with their company received more in severance pay than nonofficer employees who had not—a standard example of a company policy to reward employees for a greater length of good service and loyalty. In this respect severance payments are like many other benefits employers offer to employees above and beyond salary payments. Like health and retirement benefits, stock options, or merit-based bonuses, a competitive severance payment package can help attract talented employees. Here, the terminations leading to the severance payments were triggered by the employer’s involuntary bankruptcy proceeding, a prospect against which employees may wish to protect themselves in an economy that is always subject to changing conditions. Severance payments, moreover, can be desirable from the perspective of the employer as an alternative or supplemental form of remuneration. In situations in which Chapter 11 bankruptcy reorganization is necessary, an employer may seek to retain goodwill by paying its terminated employees well, thus reinforcing its reputation as a worthy employer. Employers who downsize in a period of slow business may wish to retain the ability to rehire employees who have been terminated. A specific exemption under FICA for certain termination-related payments reinforces the conclusion that the payments in question are well within the definition of wages. Section 3121(a)(13)(A) exempts from taxablewages any severance payments made “because of . . . retire-ment for disability.” That exemption would be unnecessary were severance payments in general not within FICA’s definition of “wages.” Cf. American Bank & Trust Co. v. Dallas County, 463 U. S. 855, 864 (1983) (declining to read a statute in a manner that would cause “spe-cific exemptions” to be “superfluous”). FICA’s definitional section, moreover, provides a lengthy list of specific exemptions from the definition of wages. For example, FICA exempts from wages payments on account of disability caused by sickness or accident, cash payments made for domestic service in a private home under a certain amount, and cash tips less than a certain amount. See §§3121(a)(2)(A), (7)(B), (12)(B). The specificity of these exemptions reinforces the broad nature of FICA’s definition of wages. FICA’s statutory history sheds further light on the text of §3121, which defines the term “wages.” FICA was originally enacted in Title VIII of the Social Security Act, 49Stat. 636. (In 1939, Title VIII was transferred to the Internal Revenue Code and became FICA. 53Stat. 1387.) Title VIII contained, in substance, definitions of “wages” and “employment” identical to those FICA now provides. See §811(a), 49Stat. 639; §811(b), ibid. With respect to the Social Security Act, in 1936 the Treasury Department promulgated a regulation stating that the statutory definition of “wages” included “dismissal pay.” Bureau of Internal Revenue, Employees’ Tax and the Employers’ Tax Under Title VIII of the Social Security Act, 1 Fed. Reg. 1764, 1769 (1936). Congress responded a few years later, in 1939, by creating an exception from “wages” for “[d]ismissal payments which the employer is not legally required to make.” Social Security Act Amendments of 1939, §606, 53Stat. 1384 (codified at 26 U. S. C. §1426(a)(4) (1940 ed.)). In 1950, however, Congress repealed that exception. Social Security Act Amendments, §203(a), 64Stat. 525–527. “When Congress acts to amend a statute, we presume it intends its amendment to have real and sub-stantial effect.” Stone v. INS, 514 U. S. 386, 397 (1995) . Congress has not revisited its 1950 amendment; and since that time, FICA has contained no exception for severance payments. B The next question is whether §3402(o) of the Internal Revenue Code relating to income-tax withholding is a limitation on the meaning of “wages” for FICA purposes. Section 3402 provides: “(o) Extension of withholding to certain payments other than wages. “(1) General rule “For purposes of this chapter (and so much of subtitle F as relates to this chapter)— “(A) any supplemental unemployment compensation benefit paid to an individual, . . . . . “shall be treated as if it were a payment of wages by an employer to an employee for a payroll period.” (Pursuant to stipulations by the parties, the Court of Appeals determined that the severance payments constitute “supplemental unemployment compensation benefits,” or SUBs. See §3402(o)(2)(A). The Court assumes, for purposes of this case, that this premise is correct.) Quality Stores argues that §3402(o)’s instruction that SUBs be treated “as if” they were wages for purposes of income-tax withholding is an indirect means of stating that the definition of wages for income-tax withholding does not cover severance payments. It contends, further, that if the definition of wages for purposes of income-tax withholding does not encompass severance payments, then severance payments are not covered by FICA’s similar definition of wages. The Court disagrees that §3402(o) should be read as Quality Stores suggests. The chapter governing income-tax withholding has a broad definition of the term “wages”: “all remuneration . . . for services performed by an employee for his employer, including the cash value of all remuneration (including benefits) paid in any medium other than cash.” §3401(a). The definitional section for income-tax withholding, like the definitional section for FICA, contains a series of specific exemptions that reinforce the broad scope of its definition of wages. The provision exempts from wages, for example, any remuneration paid for domestic service in a private home, for services rendered to a foreign government, and for services performed by a minister of a church in the course of his duties. §§3401(a)(3), (5), (9). Severance payments are not exempted, and they squarely fall within the broad textual definition of wages for purposes of income-tax withholding under §3401(a), for the same reasons outlined above with respect to FICA’s similar definition of wages. Quality Stores contends that, the broad wording of the definition in §3401(a) aside, severance payments must fall outside the definition of wages for income-tax withholding. Otherwise, it argues, §3402(o) would be superfluous. But, as the Government points out, §3402(o)’s command that all severance payments be treated “as if” they were wages for income-tax withholding is in all respects consistent with the proposition that at least some severance payments are wages. As the Federal Circuit explained when construing §3402(o), the statement that “all men shall be treated as if they were six feet tall does not imply that no men are six feet tall.” CSX Corp., 518 F. 3d, at 1342. In the last of its textual arguments, Quality Stores draws attention to the boldface heading of §3402(o), which states, “Extension of withholding to certain payments other than wages.” It contends the heading declares that the payments enumerated within §3402(o) are “other than wages.” Captions, of course, can be “a useful aid in resolving” a statutory text’s “ambiguity.” FTC v. Mandel Brothers, Inc., 359 U. S. 385 –389 (1959). But Quality Stores cannot rely on the statutory heading to support its argument that §3402(o), without ambiguity, excludes all severance payments from the definition of wages. The heading states that withholding is extended to “certain payments.” This falls short of a declaration that all the payments listed in §3402(o) are not wages. Next, the regulatory background against which §3402(o) was enacted illustrates the limited nature of the problem the provision was enacted to address. For this purpose, it is instructive to concentrate on the statutory term “supplemental unemployment benefits,” which defines the scope of §3402(o)’s income-tax withholding mandate. The concept of SUBs originated in labor demands for a guaranteed annual wage. When it became clear this was “impractical in their industries, unions such as the Steelworkers and the United Auto Workers transformed their guaranteed annual wage demands into proposals to supplement existing unemployment compensation programs.” Coffy v. Republic Steel Corp., 447 U. S. 191, 200 (1980) . A SUB plan, as originally conceived, offered “second-level protection against layoff” by supplementing unemployment benefits offered by the States. Ibid. In the 1950’s, major American employers such as Ford Motor Company adopted SUB plans of this type, agreeing to fund trusts that would provide SUBs to terminated employees. For example, Ford’s contract with employees defined the concept of SUBs as the receipt of “both a state system unemployment benefit and a Weekly Supplemental Benefit . . . without reduction of the state system unemployment benefit because of the payment of the Weekly Supplemental Benefit.” Note, Effect of Receiving Supplemental Unemployment Benefits on Eligibility for State Benefits, 69 Harv. L. Rev. 362, 364, n. 11 (1955); seeJ. Becker, Guaranteed Income for the Unemployed: The Story of SUB (1968). Employer plans that provided SUBs sought “to provide economic security for regular employees” and “to assure a stable work force through periods of short-term layoffs.” Coffy, supra, at 200. But an obstacle arose. For these plans to work, it was necessary to avoid having the SUBs defined under federal law as “wages.” That was because some States only provided unemployment benefits if terminated employees were not earning “wages” from their employers. See Brief for United States 29; CSX Corp., supra, at 1334–1335; Note, 69 Harv. L. Rev., at 366 (“The typical state unemployment compensation statute provides that ‘an individual shall be deemed unemployed in any week with respect to which no wages are payable to him and during which he performs no services . . .’ ” (ellipsis and emphasis in original)); id., at 367 (“[S]tates tend to treat as ‘wages’ those items which the federal government treats as ‘wages’ ”). The inability of terminated employees to receive state unemployment benefits, of course, would render SUBs far less useful to them and their employers. Employers, as a consequence, undertook to ensure that the Federal Government did not construe benefits paid out by SUB plans as “wages.” CSX Corp., supra, at 1334–1335. In at least partial response to the prospect of differential treatment of SUBs based on the vagaries of state law, the IRS promulgated a series of Revenue Rulings in the 1950’s and 1960’s that took the position that SUB payments were not “wages” under FICA as well as for purposes of income-tax withholding. Rev. Rul. 56–249, 1956–1 Cum. Bull. 488; see Rev. Rul. 58–128, 1958–1 Cum. Bull. 89; Rev. Rul. 60–330, 1960–2 Cum. Bull. 46; see also IRS Technical Advice Memorandum 9416003, 1993 WL 642695 (Apr. 22, 1994) (hereinafter TAM 9416003). Although the IRS exempted SUBs paid to terminated employees from withholding for income-tax purposes, the payments still were considered taxable income. Rev. Rul. 56–249, 1956–1 Cum. Bull. 488. As a result, terminated employees faced significant tax liability at the end ofthe year. The Treasury Department suggested Congress authorize the agency to promulgate regulations allowing voluntary withholding. Statements and Recommendations of the Department of the Treasury: Hearings on H. R. 13270 before the Senate Committee on Finance, 91st Cong., 1st Sess., 905–906 (1969). In 1969, Congress chose instead to address the withholding problem by enacting §3402(o). It provides that all severance payments—that is, both SUBs as well as severance payments that the IRS considered wages—shall be “treated as if” they were wages for purposes of income-tax withholding. It is apparent that the definition Congress adopted in §3402(o) is not limited to the SUBs that the IRS had deemed exempt from wages under FICA. See §3402(o)(2)(A). It must be presumed that Congress was aware that §3402(o) covered more than the severance payments that were excluded from income-tax withholding. Not all severance payment plans were tied to state unemployment benefits; and, before §3402(o)’s 1969 enactment, the IRS ruled that severance payments not linked to state unemployment benefits were wages for purposes of income-tax withholding. See Rev. Rul. 65–251, 1965–2 Cum. Bull. 395; see also TAM 9416003 (the IRS’ original 1956 exception for SUBs provided “a limited exception from the definition of wages for . . . federal income tax withholding . . . only if the payments are de-signed to supplement the receipt of state unemployment compensation and are actually tied to state unemployment benefits”); ibid. (“SUB-pay plans must be designed to supplement unemployment benefits . . .”). Once this background is understood, the Court of Appeals’ interpretation of §3402(o) as standing for some broad definitional principle is shown to be incorrect. Although Congress need not have agreed with the Revenue Rulings to enact §3402(o), its purpose to eliminatethe withholding problem caused by the differential treatment of severance payments is the necessary background to understand the meaning and purpose of the provision. The problem Congress sought to resolve was the prospect that terminated employees would owe large payments in taxes at the end of the year as a result of the IRS’ exemption of certain SUBs from withholding. It remained possible that the IRS would determine that other forms of SUB plans, perhaps linked differently to state unemployment benefits, should be exempt from withholding. If Congress had only incorporated the Revenue Rulings already in effect, that response may have risked the withholding problem arising once again. On the other hand, by drawing a withholding requirement that was broader than then-current IRS exemptions, Congress avoided these practical problems. A requirement that a form of remuneration already included as wages be treated “as if” it were wages created no administrative difficulties. The Court of Appeals understood Congress’ decision to include within §3402(o) a larger set of SUBs than was already exempt from withholding under IRS Revenue Rulings to mean that all SUBs were excluded from the definition of wages. But that assumption, although in the abstract not necessarily an illogical inference, is unsustainable, considering the regulatory background against which §3402(o) was enacted. Congress interpreted the Revenue Rulings not at all as a definitive gloss on the meaning of the term “wages” in §3401. The better reading is that Congress determined that, whatever position the IRS took with respect to certain categories of severance payments, the problem with withholding should be solved by treating all severance payments as wages requiring withholding. The necessary conclusion is that §3402(o) does not narrow the term “wages” under FICA to exempt all severance payments. This reasoning is consistent with Rowan, a previous decision interpreting FICA. In Rowan, the Court held that Treasury Regulations interpreting “wages”un-der FICA to include the value of meals and lodging were invalid. The Government conceded, for income-tax purposes, that the taxpayer in Rowan was correct to exempt the value of the meals and lodging in computing the wages properly withheld under §3402. 452 U. S., at 250–251. But it argued, nevertheless, that the value of the meals and lodging was taxable as wages under FICA, pursuant to Treasury Regulations. The Rowan Court observed that the definition of wages under FICA was in substance the same as for purposes of withholding. Id., at 255. The Court read that similarity to be “strong evidence that Congress intended ‘wages’ to mean the same thing under FICA . . . and income-tax withholding.” Ibid. To support that conclusion, the Court noted a “congressional concern for ‘the interest of simplicity and ease of administration.’ ” Ibid. (quoting S. Rep. No. 1631, 77th Cong., 2d Sess., 165 (1942)). Because “Congress intended . . . to coordinate the income-tax withholding system with FICA” in order “to promote simplicity and ease of administration,” the Court held that it would be “extraordinary” for Congress to intend the definitions of “wages” to vary between FICA and income-tax withholding. 452 U. S., at 257. The specific holding of Rowan—that regulations governing meals and lodging were invalid—has little or nobearing on the issue confronting us here. What is of im-portance is the major principle recognized in Rowan: that simplicity of administration and consistency of statutory interpretation instruct that the meaning of “wages” should be in general the same for income-tax withholding and for FICA calculations. Quality Stores contends that, under the mandate of §3402(o), severance payments are not subject to FICA taxation but are to be deemed wages for purposes ofincome-tax withholding. It justifies this differential treat-ment in the name of uniformity. But that so-called uniformity as to the definitions of wages (i.e., that severance payments are not wages) is not consistent with the broad textual definitions of wages under FICA and income-tax withholding. Nor is it consistent with this Court’s holding that administrative reasons justify treating severance payments as taxable for both FICA and income-tax purposes. To read Congress’ command to withhold severance payments as an implicit overruling of the broad definition of wages in FICA would disserve the statutory text and the congressional interest in administrative simplicity deemed controlling in Rowan. In concluding, the Court notes that the IRS still provides that severance payments tied to the receipt of state unemployment benefits are exempt not only from income-tax withholding but also from FICA taxation. See, e.g., Rev. Rul. 90–72, 1990–2 Cum. Bull. 211. Those Revenue Rulings are not at issue here. Because the severance payments here were not linked to state unemployment benefits, the Court does not reach the question whether the IRS’ current exemption is consistent with the broad definition of wages under FICA. * * * The severance payments here were made to employees terminated against their will, were varied based on job seniority and time served, and were not linked to the receipt of state unemployment benefits. Under FICA’s broad definition, these severance payments constitute taxable wages. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Kagan took no part in the consideration or decision of this case.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UNITED STATES v. QUALITY STORES, INC., et al. certiorari to the united states court of appeals for the sixth circuit No. 12–1408. Argued January 14, 2014—Decided March 25, 2014 Respondent Quality Stores, Inc., and its affiliates (collectively Quality Stores) made severance payments to employees who were involuntarily terminated as part of Quality Stores’ Chapter 11 bankruptcy. Payments—which were made pursuant to plans that did not tie payments to the receipt of state unemployment insurance—varied based on job seniority and time served. Quality Stores paid and withheld, inter alia, taxes required under the Federal Insurance Contributions Act (FICA), 26 U. S. C. §3101 et seq. Later believing that the payments should not have been taxed as wages under FICA, Quality Stores sought a refund on behalf of itself and about 1,850 former employees. When the Internal Revenue Service (IRS) did not allow or deny the refund, Quality Stores initiated proceedings in the Bankruptcy Court, which granted summary judgment in its favor. The District Court and Sixth Circuit affirmed, concluding that severance payments are not wages under FICA. Held: The severance payments at issue are taxable wages for FICA purposes. . (a) FICA defines “wages” broadly as “all remuneration for employment.” §3121(a). As a matter of plain meaning, severance payments fit this definition: They are a form of remuneration made only to employees in consideration for employment. “Employment” is “any service . . . performed . . . by an employee” for an employer. §3121(b). By varying according to a terminated employee’s function and seniority, the severance payments at issue confirm the principle that “service” “mea[ns] not only work actually done but the entire employer-employee relationship for which compensation is paid.” Social Security Bd. v. Nierotko, 327 U.S. 358, 365–366. This broad definition is reinforced by the specificity of FICA’s lengthy list of exemptions. The exemption for severance payments made “because of . . . retirement for disability,” §3121(a)(13)(A), would be unnecessary were severance payments generally not considered wages. FICA’s statutory history sheds further light on the definition. FICA originally contained definitions of “wages” and “employment” identical in substance to the current ones, but in 1939, Congress excepted from “wages” “[d]ismissal payments” not legally required by the employer, 53Stat. 1384. Since that exception was repealed in 1950, FICA has contained no general exception for severance payments. . (b) The Internal Revenue Code chapter governing income-tax withholding does not limit the meaning of “wages” for FICA purposes. Like FICA’s definitional section, §3401(a) has a broad definition of “wages” and contains a series of specific exemptions. Section 3402(o) instructs that “supplemental unemployment compensation benefits” or SUBs, which include severance payments, be treated “as if” they were wages. Contrary to Quality Stores’ reading, this “as if” instruction does not mean that severance payments fall outside the definition of “wages” for income-tax withholding purposes and, in turn, are not covered by FICA’s definition. Nor can Quality Stores rely on §3402(o)’s heading, which refers to “certain payments other than wages.” To the extent statutory headings are useful in resolving ambiguity, see FTC v. Mandel Brothers, Inc., 359 U.S. 385, 388–389, §3402(o)’s heading falls short of declaring that all the payments listed in §3402(o) are “other than wages.” Instead, §3402(o) must be understood in terms of the regulatory background against which it was enacted. In the 1950’s and 1960’s, because some States provided unemployment benefits only to terminated employees not earning wages, IRS Rulings took the position that severance payments tied to the receipt of state benefits were not wages. To address the problem that severance payments were still considered taxable income, which could lead to large year-end tax liability for terminated workers, Congress enacted §3402(o), which treats both SUBs and severance payments the IRS considered wages “as if” they were wages subject to withholding. By extending this treatment to all SUBs, Congress avoided the practical problems that might arise if the IRS later determined that SUBs besides severance payments linked to state benefits should be exempt from withholding. Considering this regulatory background, the assumption that Congress meant to exclude all SUBs from the definition of “wages” is unsustainable. That §3402(o) does not narrow FICA’s “wages” definition is also consistent with the major principle of Rowan Cos. v. United States, 452 U. S. 247: that simplicity of administration and consistency of statutory interpretation instruct that the meaning of “wages” should be in general the same for income-tax withholding and for FICA calculations. . 693 F.3d 605, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which all other Members joined, except Kagan, J., who took no part in the consideration or decision of the case.

Section 3402(o) of the Internal Revenue Code of 1954 (IRC) provides that severance pay-ments made to employees terminated against their will are taxable wages under the Federal Insurance Contri-butions Act (FICA), 26 U. S. C. §3101 et seq. The IRC defines wages as including wages paid by an employer or re-ceived by an employee with respect to employment, and as a matter of plain meaning, severance payments are made in consideration for employment. Respondents, an agricultural-specialty retailer, and affiliated companies, all referred to here as Quality Stores, terminated thousands of employees. The termination of the employees was triggered by the employer's involuntary bankruptcy proceeding, a prospect against which employees may wish to protect themselves in an economy that is always subject to changing conditions. Quality Stores asked former employees to allow it to file FICA tax refund claims for them, and about 1,850 former employees agreed to allow Qual-ity Stores to pursue FICA refunds. On its own behalf and on behalf of the former employees, Quality Stores filed for a refund of $1,000,125 in FICA taxes. The Internal Revenue Service neither allowed nor denied the claim, and Quality Stores initiated a proceeding in the Bankruptcy Court seeking a refund. The District Court granted summary judgment in its favor, and the Court of Appeals affirmed. Held: 1. The IRC definition of wages is broad, and does not alter that definition. To reach its holding, the court relied not on FICA, but on the IRC provision governing income-tax withholding. That definition is entirely compatible with the proposition that some or all payments do fall within the broad definition of the term wages. . (a) The IRC provision was enacted in response to a narrow, specific problem regarding income tax withholding, and, in addition, was intended to have a substantial and sub-substantial effect. Rowan Cos. v. United States, 452 U.S. 247 (1981), which held that wages should be congruence in the rules for FICA and income-Tax withholding, since the definition here is not limited to wages, and since FICA has contained no exception for severance payments. Moreover, the regulatory background against which the IRC was enacted illustrates the limited nature of the problem it was enacted to address. While Congress need not have agreed with the Revenue Rulings, its purpose to eliminatethe withholding problem caused by the differential treatment of severance payment is the necessary background to understand the meaning and purpose of the provision. When Congress acts to amend a statute, it is presumed that it intends its amendment to have real and substantial effect, Rowan, supra, at. P.. (b) The statutory term "supplemental unemployment benefits," which defines the scope of §3402 (o), is not inconsistent with the broad textual definitions of wages under FICA. Cf., e.g., Coffy v. Republic Steel Corp.,; ibid. (SUB-pay plans must be designed to supplement unemployment benefits). To read Congress' command to withhold severance mails as an implicit overruling of the broad definition of wages in FICA would disserve the statutory text and the congressional interest in administrative simplicity deemed controlling in Rowan. In concluding, the Court notes that the IRS still still provides severance pays tied to the receipt of state unemployment benefits, but does not reach the question whether the IRS' current exemption is consistent with the FICA broad definition of wages, such as those involved here. See, e. g., Rev. Rul. 90-72, 1990–2 Cum. Bull. 211. This Court does not address the question of whether the current exemption does not comport with FICA's broad definition, since, under the IRS, a larger set of SUBs than was already exempt from withholding under IRS Revenue RULings are not at issue here, and because the severance Payments here were not linked to state unemployment benefits. Thus, the judgment is reversed and the case is remanded for further proceedings consistent with this opinion. 597 F.2d 593, reversed and remanded.

2013_12-562

https://www.oyez.org/cases/2013/12-562

. We decide whether the penalty for tax underpayments attributable to valuation misstatements, 26 U. S. C. §6662(b)(3), is applicable to an underpayment resulting from a basis-inflating transaction subsequently disregarded for lack of economic substance. I. The Facts A This case involves an offsetting-option tax shelter, variants of which were marketed to high-income taxpayers in the late 1990’s. Tax shelters of this type sought to generate large paper losses that a taxpayer could use to reduce taxable income. They did so by attempting to give the tax-payer an artificially high basis in a partnership interest, which enabled the taxpayer to claim a significant tax loss upon disposition of the interest. See IRS Notice 2000–44, 2000–2 Cum. Bull. 255 (describing offsetting-option tax shelters). The particular tax shelter at issue in this case was developed by the now-defunct law firm Jenkens & Gilchrist and marketed by the accounting firm Ernst & Young under the name “Current Options Bring Reward Alternatives,” or COBRA. Respondent Gary Woods and his employer, Billy Joe McCombs, agreed to participate in COBRA to reduce their tax liability for 1999. To that end, in November 1999 they created two general partnerships: one, Tesoro Drive Partners, to produce ordinary losses, and the other, SA Tesoro Investment Partners, to produce capital losses. Over the next two months, acting through their respective wholly owned, limited liability companies, Woods and McCombs executed a series of transactions. First, they purchased from Deutsche Bank five 30-day currency-option spreads. Each of these option spreads was a package consisting of a so-called long option, which entitled Woods and McCombs to receive a sum of money from Deutsche Bank if a certain currency exchange rate exceeded a certain figure on a certain date, and a so-called short option, which entitled Deutsche Bank to receive a sum of money from Woods and McCombs if the exchange rate for the same currency on the same date exceeded a certain figure so close to the figure triggering the long option that both were likely to be triggered (or not to be triggered) on the fated date. Because the premium paid to Deutsche Bank for purchase of the long option was largely offset by the premium received from Deutsche Bank for sale of the short option, the net cost of the package to Woods and McCombs was substantially less than the cost of the long option alone. Specifically, the premiums paid for all five of the spreads’ long options totaled $46 million, and the premiums received for the five spreads’ short options totaled $43.7 million, so the net cost of the spreads was just $2.3 million. Woods and McCombs contributed the spreads to the partnerships along with about $900,000 in cash. The partnerships used the cash to purchase assets—Canadian dollars for the partnership that sought to produce ordinary losses, and Sun Microsystems stock for the partnership that sought to produce capital losses. The partnerships then terminated the five option spreads in exchange for a lump-sum payment from Deutsche Bank. As the tax year drew to a close, Woods and McCombs transferred their interests in the partnerships to two S corporations. One corporation, Tesoro Drive Investors, Inc., received both partners’ interests in Tesoro Drive Partners; the other corporation, SA Tesoro Drive Investors, Inc., received both partners’ interests in SA Tesoro Investment Partners. Since this left each partnership with only a single partner (the relevant S corporation), the partnerships were liquidated by operation of law, and their assets—the Canadian dollars and Sun Microsystems stock, plus the remaining cash—were deemed distributed to the corporations. The corporations then sold those assets for modest gains of about $2,000 on the Canadian dollars and about $57,000 on the stock. But instead of gains, the corporations reported huge losses: an ordinary loss of more than $13 million on the sale of the Canadian dollars and a capital loss of more than $32 million on the sale of the stock. The losses were allocated between Woods and McCombs as the corporations’ co-owners. The reason the corporations were able to claim such vast losses—the alchemy at the heart of an offsetting-options tax shelter—lay in how Woods and McCombs calculated the tax basis of their interests in the partnerships. Tax basis is the amount used as the cost of an asset when computing how much its owner gained or lost for tax purposes when disposing of it. See J. Downes & J. Goodman, Dictionary of Finance and Investment Terms 736 (2010). A partner’s tax basis in a partnership interest—called “outside basis” to distinguish it from “inside basis,” the partnership’s basis in its own assets—is tied to the value of any assets the partner contributed to acquire the interest. See 26 U. S. C. §722. Collectively, Woods and McCombs contributed roughly $3.2 million in option spreads and cash to acquire their interests in the two partnerships. But for purposes of computing outside basis, Woods and McCombs considered only the long component of the spreads and disregarded the nearly offset-ting short component on the theory that it was “too contingent” to count. Brief for Respondent 14. As a result, they claimed a total adjusted outside basis of more than $48 million. Since the basis of property distributed to a partner by a liquidating partnership is equal to the adjusted basis of the partner’s interest in the partnership (reduced by any cash distributed with the property), see §732(b), the inflated outside basis figure was carried over to the S corporations’ basis in the Canadian dollars and the stock, enabling the corporations to report enormous losses when those assets were sold. At the end of the day, Woods’ and McCombs’ $3.2 million investment generated tax losses that, if treated as valid, could have shielded more than $45 million of income from taxation. B The Internal Revenue Service, however, did not treat the COBRA-generated losses as valid. Instead, after auditing the partnerships’ tax returns, it issued to each partnership a Notice of Final Partnership Administrative Adjustment, or “FPAA.” In the FPAAs, the IRS determined that the partnerships had been “formed and availed of solely for purposes of tax avoidance by artificially overstating basis in the partnership interests of [the] purported partners.” App. 92, 146. Because the partnerships had “no business purpose other than tax avoidance,” the IRS said, they “lacked economic substance”—or, put more starkly, they were “sham[s]”—so the IRS would disregard them for tax purposes and disallow the related losses. Ibid. And because there were no valid partnerships for tax purposes, the IRS determined that the partners had “not established adjusted bases in their respective partnership interests in an amount greater than zero,” id., at 95, ¶7, 149, ¶7 so that any resulting tax underpayments would be subject to a 40-percent penalty for gross valuation misstatements, see 26 U. S. C. §6662(b)(3). Woods, as the tax-matters partner for both partnerships, sought judicial review of the FPAAs pursuant to §6226(a). The District Court held that the partner- ships were properly disregarded as shams but that the valuation-misstatement penalty did not apply. The Govern-ment appealed the decision on the penalty to the Court of Appeals for the Fifth Circuit. While the appeal was pending, the Fifth Circuit held in a similar case that, under Circuit precedent, the valuation-misstatement penalty does not apply when the relevant transaction is disregarded for lacking economic substance. Bemont Invs., LLC v. United States, 679 F. 3d 339, 347–348 (2012). In a concurrence joined by the other members of the panel, Judge Prado acknowledged that this rule was binding Circuit law but suggested that it was mistaken. See id., at 351–355. A different panel subsequently affirmed the District Court’s decision in this case in a one-paragraph opinion, declaring the issue “well settled.” 471 Fed. Appx. 320 (per curiam), reh’g denied (2012). [ 1 ] We granted certiorari to resolve a Circuit split over whether the valuation-misstatement penalty is applicable in these circumstances. 569 U. S. ___ (2013). See Bemont, supra, at 354–355 (Prado, J., concurring) (recognizing “near-unanimous opposition” to the Fifth Circuit’s rule). Because two Courts of Appeals have held that District Courts lacked jurisdiction to consider the valuation-misstatement penalty in similar circumstances, see Jade Trading, LLC v. United States, 598 F. 3d 1372, 1380 (CA Fed. 2010); Petaluma FX Partners, LLC v. Commissioner, 591 F. 3d 649, 655–656 (CADC 2010), we ordered briefing on that question as well. II. District-Court Jurisdiction A We begin with a brief explanation of the statutory scheme for dealing with partnership-related tax matters. A partnership does not pay federal income taxes; instead, its taxable income and losses pass through to the partners. 26 U. S. C. §701. A partnership must report its tax items on an information return, §6031(a), and the partners must report their distributive shares of the partnership’s tax items on their own individual returns, §§702, 704. Before 1982, the IRS had no way of correcting errors on a partnership’s return in a single, unified proceeding. Instead, tax matters pertaining to all the members of a partnership were dealt with just like tax matters pertaining only to a single taxpayer: through deficiency proceedings at the individual-taxpayer level. See generally §§6211–6216 (2006 ed. and Supp. V). Deficiency proceedings require the IRS to issue a separate notice of deficiency to each taxpayer, §6212(a) (2006 ed.), who can file a petition in the Tax Court disputing the alleged deficiency before paying it, §6213(a). Having to use deficiency proceedings for partnership-related tax matters led to du-plicative proceedings and the potential for inconsistent treatment of partners in the same partnership. Congress addressed those difficulties by enacting the Tax Treatment of Partnership Items Act of 1982, as Title IV of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). 96Stat. 648 (codified as amended at 26 U. S. C. §§6221–6232 (2006 ed. and Supp. V)). Under TEFRA, partnership-related tax matters are addressed in two stages. First, the IRS must initiate proceedings at the partnership level to adjust “partnership items,” those relevant to the partnership as a whole. §§6221, 6231(a)(3). It must issue an FPAA notifying the partners of any adjustments to partnership items, §6223(a)(2), and the partners may seek judicial review of those adjustments, §6226(a)–(b). Once the adjustments to partnership items have become final, the IRS may undertake further proceedings at the partner level to make any resulting “computational adjustments” in the tax liability of the individual partners. §6231(a)(6). Most computational adjustments may be directly assessed against the partners, bypassing deficiency proceedings and permitting the partners to challenge the assessments only in post-payment refund actions. §6230(a)(1), (c). Deficiency proceedings are still required, however, for certain com-putational adjustments that are attributable to “affected items,” that is, items that are affected by (but are not themselves) partnership items. §§6230(a)(2)(A)(i), 6231(a)(5). B Under the TEFRA framework, a court in a partnership-level proceeding like this one has jurisdiction to determine not just partnership items, but also “the applicability of any penalty . . . which relates to an adjustment to a partnership item.” §6226(f). As both sides agree, a determination that a partnership lacks economic substance is an adjustment to a partnership item. Thus, the jurisdictional question here boils down to whether the valuation-misstatement penalty “relates to” the determination that the partnerships Woods and McCombs created were shams. The Government’s theory of why the penalty was triggered is based on a straightforward relationship between the economic-substance determination and the penalty. In the Government’s view, there can be no outside basis in a sham partnership (which, for tax purposes, does not exist), so any partner who underpaid his individual taxes by declaring an outside basis greater than zero committed a valuation misstatement. In other words, the penalty flows logically and inevitably from the economic-substance determination. Woods, however, argues that because outside basis is not a partnership item, but an affected item, a penalty that would rest on a misstatement of outside basis cannot be considered at the partnership level. He maintains, in short, that a penalty does not relate to a partnership-item adjustment if it “requires a partner-level determination,” regardless of “whether or not the penalty has a connection to a partnership item.” Brief for Respondent 27. Because §6226(f)’s “relates to” language is “essentially indeterminate,” we must resolve this dispute by looking to “the structure of [TEFRA] and its other provisions.” Maracich v. Spears, 570 U. S. ___, ___ (2013) (slip op., at 9) (internal quotation marks and brackets omitted). That inquiry makes clear that the District Court’s jurisdiction is not as narrow as Woods contends. Prohibiting courts in partnership-level proceedings from considering the applicability of penalties that require partner-level inquiries would be inconsistent with the nature of the “applicability” determination that TEFRA requires. Under TEFRA’s two-stage structure, penalties for tax underpayment must be imposed at the partner level, because partnerships themselves pay no taxes. And imposing a penalty always requires some determinations that can be made only at the partner level. Even where a partnership’s return contains significant errors, a partner may not have carried over those errors to his own return; or if he did, the errors may not have caused him to underpay his taxes by a large enough amount to trigger the penalty; or if they did, the partner may nonetheless have acted in good faith with reasonable cause, which is a bar to the imposition of many penalties, see §6664(c)(1). None of those issues can be conclusively determined at the partnership level. Yet notwithstanding that every pen-alty must be imposed in partner-level proceedings after partner-level determinations, TEFRA provides that the applicability of some penalties must be determined at the partnership level. The applicability determination is therefore inherently provisional; it is always contingent upon determinations that the court in a partnership-level proceeding does not have jurisdiction to make. Barring partnership-level courts from considering the applicability of penalties that cannot be imposed without partner-level inquiries would render TEFRA’s authorization to consider some penalties at the partnership level meaningless. Other provisions of TEFRA confirm that conclusion. One requires the IRS to use deficiency proceedings for computational adjustments that rest on “affected items which require partner level determinations (other than penalties . . . that relate to adjustments to partnership items).” §6230(a)(2)(A)(i). Another states that while a partnership-level determination “concerning the applicability of any penalty . . . which relates to an adjustment to a partnership item” is “conclusive” in a subsequent re-fund action, that does not prevent the partner from “assert[ing] any partner level defenses that may apply.” §6230(c)(4). Both these provisions assume that a penalty can relate to a partnership-item adjustment even if the penalty cannot be imposed without additional, partner-level determinations. These considerations lead us to reject Woods’ interpretation of §6226(f). We hold that TEFRA gives courts in partnership-level proceedings jurisdiction to determine the applicability of any penalty that could result from an adjustment to a partnership item, even if imposing the penalty would also require determining affected or non-partnership items such as outside basis. The partnership-level applicability determination, we stress, is provisional: the court may decide only whether adjustments properly made at the partnership level have the potential to trigger the penalty. Each partner remains free to raise, in subsequent, partner-level proceedings, any reasons why the penalty may not be imposed on him specifically. Applying the foregoing principles to this case, we conclude that the District Court had jurisdiction to determine the applicability of the valuation-misstatement penalty—to determine, that is, whether the partnerships’ lack of economic substance (which all agree was properly decided at the partnership level) could justify imposing a valuation-misstatement penalty on the partners. When making that determination, the District Court was obliged to consider Woods’ arguments that the economic-substance determination was categorically incapable of triggering the penalty. Deferring consideration of those arguments until partner-level proceedings would replicate the precise evil that TEFRA sets out to remedy: duplicative proceedings, potentially leading to inconsistent results, on a question that applies equally to all of the partners. To be sure, the District Court could not make a formal ad-justment of any partner’s outside basis in this partnership-level proceeding. See Petaluma, 591 F. 3d, at 655. But it nonetheless could determine whether the adjustments it did make, including the economic-substance deter-mination, had the potential to trigger a penalty; and in doing so, it was not required to shut its eyes to the legal impossibility of any partner’s possessing an outside basis greater than zero in a partnership that, for tax purposes, did not exist. Each partner’s outside basis still must be adjusted at the partner level before the penalty can be imposed, but that poses no obstacle to a partnership-level court’s provisional consideration of whether the economic-substance determination is legally capable of triggering the penalty. [ 2 ] III. Applicability of Valuation-Misstatement Penalty A Taxpayers who underpay their taxes due to a “valuation misstatement” may incur an accuracy-related penalty. A 20-percent penalty applies to “the portion of any underpayment which is attributable to . . . [a]ny substantial valuation misstatement under chapter 1.” 26 U. S. C. §6662(a), (b)(3). Under the version of the penalty statute in effect when the transactions at issue here occurred, “there is a substantial valuation misstatement under chapter 1 if . . . the value of any property (or the adjusted basis of any property) claimed on any return of tax imposed by chapter 1 is 200 percent or more of the amount determined to be the correct amount of such valuation or adjusted basis (as the case may be).” §6662(e)(1)(A) (2000 ed.). If the reported value or adjusted basis exceeds the correct amount by at least 400 percent, the valuation misstatement is considered not merely substantial, but “gross,” and the penalty increases to 40 percent. §6662(h). [ 3 ] The penalty’s plain language makes it applicable here. As we have explained, the COBRA transactions were designed to generate losses by enabling the partners to claim a high outside basis in the partnerships. But once the partnerships were deemed not to exist for tax purposes, no partner could legitimately claim an outside basis greater than zero. Accordingly, if a partner used an outside basis figure greater than zero to claim losses on his tax return, and if deducting those losses caused the partner to underpay his taxes, then the resulting underpayment would be “attributable to” the partner’s having claimed an “adjusted basis” in the partnerships that exceeded “the correct amount of such . . . adjusted basis.” §6662(e)(1)(A). An IRS regulation provides that when an asset’s true value or adjusted basis is zero, “[t]he value or adjusted basis claimed . . . is considered to be 400 percent or more of the correct amount,” so that the resulting valuation misstatement is automatically deemed gross and subject to the 40-percent penalty. Treas. Reg. §1.6662–5(g), 26 CFR §1.6662–5(g) (2013). [ 4 ] B Against this straightforward application of the statute, Woods’ primary argument is that the economic-substance determination did not result in a “valuation misstatement.” He asserts that the statutory terms “value” and “valuation” connote “a factual—rather than legal—concept,” and that the penalty therefore applies only to factual misrepresentations about an asset’s worth or cost, not to misrepresentations that rest on legal errors (like the use of a sham partnership). Brief for Respondent 35. We are not convinced. To begin, we doubt that “value” is limited to factual issues and excludes threshold legal determinations. Cf. Powers v. Commissioner, 312 U. S. 259, 260 (1941) (“[W]hat criterion should be employed for determining the ‘value’ of the gifts is a question of law”); Chapman Glen Ltd. v. Commissioner, 140 T. C. No. 15, 2013 WL2319282, *17 (2013) (“[T]hree approaches are used to determine the fair market value of property,” and “which approach to apply in a case is a question of law”). But even if “value” were limited to factual matters, the statute refers to “value” or “adjusted basis,” and there is no justification for extending that limitation to the latter term, which plainly incorporates legal inquiries. An asset’s “basis” is simply its cost, 26 U. S. C. §1012(a) (2006 ed., Supp. V), but calculating its “adjusted basis” requires the application of a host of legal rules, see §§1011(a) (2006 ed.), 1016 (2006 ed. and Supp. V), including specialized rules for calculating the adjusted basis of a partner’s interest in a partnership, see §705 (2006 ed.). The statute contains no indication that the misapplication of one of those legal rules cannot trigger the penalty. Were we to hold otherwise, we would read the word “adjusted” out of the statute. To overcome the plain meaning of “adjusted basis,” Woods asks us to interpret the parentheses in the statutory phrase “the value of any property (or the adjusted basis of any property)” as a signal that “adjusted basis” is merely explanatory or illustrative and has no meaning inde-pendent of “value.” The parentheses cannot bear that much weight, given the compelling textual evidence to the contrary. For one thing, the terms reappear later in the same sentence sans parentheses—in the phrase “such valuation or adjusted basis.” Moreover, the operative terms are connected by the conjunction “or.” While that can sometimes introduce an appositive—a word or phrase that is synonymous with what precedes it (“Vienna or Wien,” “Batman or the Caped Crusader”)—its ordinary use is almost always disjunctive, that is, the words it connects are to “be given separate meanings.” Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979) . And, of course, there is no way that “adjusted basis” could be regarded as synonymous with “value.” Finally, the terms’ second disjunctive appearance is followed by “as the case may be,” which eliminates any lingering doubt that the preceding items are alternatives. See New Oxford American Dictionary 269 (3d ed. 2010). The parentheses thus do not justify “rob[bing] the term [‘adjusted basis’] of its independent and ordinary significance.” Reiter, supra, at 338–339. Our holding that the valuation-misstatement penalty encompasses legal as well as factual misstatements of adjusted basis does not make superfluous the new penalty that Congress enacted in 2010 for transactions lacking in economic substance, see §1409(b)(2), 124Stat. 1068–1069 (codified at 26 U. S. C. §6662(b)(6) (2006 ed., Supp. V)). The new penalty covers all sham transactions, including those that do not cause the taxpayer to misrepresent value or basis; thus, it can apply in situations where the valuation-misstatement penalty cannot. And the fact that both penalties are potentially applicable to sham transactions resulting in valuation misstatements is not problematic. Congress recognized that penalties might overlap in a given case, and it addressed that possibility by providing that a taxpayer generally cannot receive more than one accuracy-related penalty for the same underpayment. See §6662(b) (2006 ed. and Supp. V). [ 5 ] C In the alternative, Woods argues that any underpayment of tax in this case would be “attributable,” not to the misstatements of outside basis, but rather to the deter-mination that the partnerships were shams—which he describes as an “independent legal ground.” Brief for Respondent 46. That is the rationale that the Fifth and Ninth Circuits have adopted for refusing to apply the valuation-misstatement penalty in cases like this, although both courts have voiced doubts about it. See Bemont, 679 F. 3d, at 347–348; id., at 351–355 (Prado, J., concurring); Keller v. Commissioner, 556 F. 3d 1056, 1060–1061 (CA9 2009). We reject the argument’s premise: The economic-substance determination and the basis misstatement are not “independent” of one another. This is not a case where a valuation misstatement is a mere side effect of a sham transaction. Rather, the overstatement of outside basis was the linchpin of the COBRA tax shelter and the mechanism by which Woods and McCombs sought to reduce their taxable income. As Judge Prado observed, in this type of tax shelter, “the basis misstatement and the transaction’s lack of economic substance are inextricably intertwined,” so “attributing the tax underpayment only to the artificiality of the transaction and not to the basis overvaluation is making a false distinction.” Bemont, supra, at 354 (concurring opinion). In short, the partners underpaid their taxes because they overstated their outside basis, and they overstated their outside basis because the partnerships were shams. We therefore have no difficulty concluding that any underpayment resulting from the COBRA tax shelter is attributable to the partners’ misrepresentation of outside basis (a valuation misstatement). Woods contends, however, that a document known as the “Blue Book” compels a different result. See General Explanation of the Economic Recovery Tax Act of 1981 (Pub. L. 97–34), 97 Cong., 1st Sess., 333, and n. 2 (Jt. Comm. Print 1980). Blue Books are prepared by the staff of the Joint Committee on Taxation as commentaries on recently passed tax laws. They are “written after passage of the legislation and therefore d[o] not inform the decisions of the members of Congress who vot[e] in favor of the [law].” Flood v. United States, 33 F. 3d 1174, 1178 (CA9 1994). We have held that such “[p]ost-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.” Bruesewitz v. Wyeth LLC, 562 U. S. ___, ___ (2011) (slip op., at 17–18); accord, Federal Nat. Mortgage Assn. v. United States, 379 F. 3d 1303, 1309 (CA Fed. 2004) (dismissing Blue Book as “a post-enactment explanation”). While we have relied on similar documents in the past, see FPC v. Memphis Light, Gas & Water Div., 411 U. S. 458 –472 (1973), our more recent precedents disapprove of that practice. Of course the Blue Book, like a law review article, may be relevant to the extent it is persuasive. But the passage at issue here does not persuade. It concerns a situation quite different from the one we confront: two separate, non-overlapping underpayments, only one of which is attributable to a valuation misstatement. * * * The District Court had jurisdiction in this partnership-level proceeding to determine the applicability of the valuation-misstatement penalty, and the penalty is applicable to tax underpayments resulting from the partners’ participation in the COBRA tax shelter. The judgment of the Court of Appeals is reversed. It is so ordered. Notes 1 The District Court held that the partnerships did not have to be “honored as legitimate for tax purposes” because they did not possess “ ‘economic substance.’ ” App. to Pet. for Cert. 19a. Woods did not appeal the District Court’s application of the economic-substance doctrine, so we express no view on it. 2 Some amici warn that our holding bodes an odd procedural result: The IRS will be able to assess the 40-percent penalty directly, but it will have to use deficiency proceedings to assess the tax underpayment upon which the penalty is imposed. See Brief for New Millennium Trading, LLC, et al. as Amici Curiae 12–13. That criticism assumes that the underpayment would not be exempt from deficiency proceedings because it would rest on outside basis, an “affected ite[m] . . . other than [a] penalt[y],” . We need not resolve that question today, but we do not think amici’s answer necessarily follows. Even an underpayment attributable to an affected item is exempt so long as the affected item does not “require partner level determinations,” ibid.; see Bush v. United States, 655 F. 3d 1323, 1330, 1333–1334 (CA Fed. 2011) (en banc); and it is not readily apparentwhy additional partner-level determinations would be required before adjusting outside basis in a sham partnership. Cf. Petaluma FX Partners, LLC v. Commissioner, 591 F. 3d 649, 655 (CADC 2010)(“If disregarding a partnership leads ineluctably to the conclusion that its partners have no outside basis, that should be just as obvious in partner-level proceedings as it is in partnership-level proceedings”). 3 Congress has since lowered the thresholds for substantial and gross misstatements to 150 percent and 200 percent, respectively. See Pension Protection Act of 2006, §1219(a)(1)–(2), . 4 An amicus suggests that this regulation is in tension with the mathematical rule forbidding division by zero. See Brief for Prof. Amandeep S. Grewal as Amicus Curiae 20, n. 7; cf. Lee’s Summit v. Surface Transp. Bd., 231 F. 3d 39, 41–42 (CADC 2000) (discussing “problems posed by applying [a] 100% increase standard to a baseline of zero”). Woods has not challenged the regulation before this Court, so we assume its validity for purposes of deciding this case. 5 We do not consider Woods’ arguments based on legislative history. Whether or not legislative history is ever relevant, it need not be consulted when, as here, the statutory text is unambiguous. Mohamad v. Palestinian Authority, 566 U. S. ___, ___ (2012) (slip op., at 8). Nor do we evaluate the claim that application of the penalty to legal rather than factual misrepresentations is a recent innovation. An agency’s failure to assert a power, even if prolonged, cannot alter the plain meaning of a statute.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UNITED STATES v. WOODS certiorari to the united states court of appeals for the fifth circuit No. 12–562. Argued October 9, 2013—Decided December 3, 2013 Respondent Gary Woods and his employer, Billy Joe McCombs, participated in an offsetting-option tax shelter designed to generate large paper losses that they could use to reduce their taxable income. To that end, they purchased from Deutsche Bank a series of currency-option spreads. Each spread was a package consisting of a long option, which Woods and McCombs purchased from Deutsche Bank and for which they paid a premium, and a short option, which Woods and McCombs sold to Deutsche Bank and for which they received a premium. Because the premium paid for the long option was largely offset by the premium received for the short option, the net cost of the package to Woods and McCombs was substantially less than the cost of the long option alone. Woods and McCombs contributed the spreads, along with cash, to two partnerships, which used the cash to purchase stock and currency. When calculating their basis in the partnership interests, Woods and McCombs considered only the long component of the spreads and disregarded the nearly offsetting short component. As a result, when the partnerships’ assets were disposed of for modest gains, Woods and McCombs claimed huge losses. Al-though they had contributed roughly $3.2 million in cash and spreads to the partnerships, they claimed losses of more than $45 million. The Internal Revenue Service sent each partnership a Notice of Final Partnership Administrative Adjustment, disregarding the partnerships for tax purposes and disallowing the related losses. It concluded that the partnerships were formed for the purpose of tax avoidance and thus lacked “economic substance,” i.e., they were shams. As there were no valid partnerships for tax purposes, the IRS determined that the partners could not claim a basis for their partnership interests greater than zero and that any resulting tax underpayments would be subject to a 40-percent penalty for gross valuation misstatements. Woods sought judicial review. The District Court held that the partnerships were properly disregarded as shams but that the valuation-misstatement penalty did not apply. The Fifth Circuit affirmed. Held: 1. The District Court had jurisdiction to determine whether the partnerships’ lack of economic substance could justify imposing a valuation-misstatement penalty on the partners. . (a) Because a partnership does not pay federal income taxes, its taxable income and losses pass through to the partners. Under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), the IRS initiates partnership-related tax proceedings at the partnership level to adjust “partnership items,” i.e., items relevant to the partnership as a whole. 26 U. S. C. §§6221, 6231(a)(3). Once the adjustments become final, the IRS may undertake further proceedings at the partner level to make any resulting “computational adjustments” in the tax liability of the individual partners. §§6230(a)(1)–(2), (c), 6231(a)(6). . (b) Under TEFRA’s framework, a court in a partnership-level proceeding has jurisdiction to determine “the applicability of any penalty . . . which relates to an adjustment to a partnership item.” §6226(f). A determination that a partnership lacks economic substance is such an adjustment. TEFRA authorizes courts in partnership-level proceedings to provisionally determine the applicability of any penalty that could result from an adjustment to a partnership item, even though imposing the penalty requires a subsequent, partner-level proceeding. In that later proceeding, each partner may raise any reasons why the penalty may not be imposed on him specifically. Applying those principles here, the District Court had jurisdiction to determine the applicability of the valuation-misstatement penalty. . 2. The valuation-misstatement penalty applies in this case. . (a) A penalty applies to the portion of any underpayment that is “attributable to” a “substantial” or “gross” “valuation misstatement,” which exists where “the value of any property (or the adjusted basis of any property) claimed on any return of tax” exceeds by a specified percentage “the amount determined to be the correct amount of such valuation or adjusted basis (as the case may be).” §§6662(a), (b)(3), (e)(1)(A), (h). The penalty’s plain language makes it applicable here. Once the partnerships were deemed not to exist for tax purposes, no partner could legitimately claim a basis in his partnership interest greater than zero. Any underpayment resulting from use of a non-zero basis would therefore be “attributable to” the partner’s having claimed an “adjusted basis” in the partnerships that exceeded “the correct amount of such . . . adjusted basis.” §6662(e)(1)(A). And under the relevant Treasury Regulation, when an asset’s adjusted basis is zero, a valuation misstatement is automatically deemed gross. . (b) Woods’ contrary arguments are unpersuasive. The valuation-misstatement penalty encompasses misstatements that rest on legal as well as factual errors, so it is applicable to misstatements that rest on the use of a sham partnership. And the partnerships’ lack of economic substance is not an independent ground separate from the misstatement of basis in this case. . 471 Fed. Appx. 320, reversed. Scalia, J., delivered the opinion for a unanimous Court.

Respondent and his employer agreed to participate in the Tax Treatment of Partnership Items Act of 1982 (COBRA) to reduce their tax liability for 1999. To that end, they created two general partnerships, one to produce ordinary losses and the other to produce capital losses. Under the tax treatment framework, a court in a partnership-level proceeding has jurisdiction to determine not just partnership items, but also the applicability of any penalty relating to an adjustment to a partnership item. The partnerships were liquidated by operation of law, and their assets were deemed distributed to the corporations. But instead of gains, the corporations reported huge losses: an ordinary loss of more than $13 million on the sale of the Canadian dollars and about $57,000 on the stock, and a capital loss of over $32 million when those assets were sold. Respondent, as the tax-matters partner for both partnerships, sought judicial review of the FPAAs pursuant to 26 U.S. C. §6226(a). The District Court held that the partnerships were properly disregarded as shams, but that the valuation-misstatement penalty did not apply. While the appeal was pending, the Court of Appeals held in a similar case that, under Circuit precedent, the penalty does not apply when the relevant transaction is disregarded for lacking economic substance. Held: The penalty for tax underpayments attributable to valuation misstatements is applicable to an underpayment resulting from a joint participation in the COBRA tax shelter. . (a) Under the Tax treatment of partnership items Act, which was enacted to address the problem of du-plicative proceedings and the potential for inconsistent treatment of partners in the same partnership, the Internal Revenue Service (IRS) issued to each partnership a Notice of Final Partnership Administrative Adjustment, or FPAAA, which, under the Act, gives courts in partnership- level proceedings jurisdiction to determine the application of any monetary penalty that could result from such an adjustment, even if imposing the penalty would also require determining affected or nonpartnership items such as outside basis. However, under that Act, the court may decide only whether adjustments properly made at the partnership level have the potential to trigger the penalty. Each partner remains free to raise, in subsequent partner-level proceedings, any reasons why the penalty may not be imposed on him specifically. Pp. 471 Fed. Appx. 320 (per curiam), reh’g denied. Here, the District Court had jurisdiction in this partnership level proceeding to determine applicability of the valuation misstatement penalty, and the penalty is applicable. Although the court could not make a formal ad-justment of any partner's outside basis in this proceeding, it could determine whether the adjustments it did make, including the economic-substance deter-mination, had the potential of triggering the penalty; and in doing so, it was not required to shut its eyes to the legal impossibility of a partner possessing an outside basis greater than zero that, for tax purposes, did not exist. It was also obliged to consider respondent and his co-owners, who claimed that the $3.2 million investment generated tax losses that, when it was sold, could have shielded $45 million of income from taxation. Moreover, the IRS regulation provides that when an asset's true value or adjusted basis is zero, it is considered to be 400 percent or more of the correct amount, so that the resulting gross misstatement is automatically deemed gross and subject to the 40-percent penalty. (b) There is no merit to respondent's argument that any underpayment of tax in this case would be attributable to the partners' misrepresentation of outside basis, since such misrepresentations are not independent of one another. See General Explanation of the Economic Recovery Tax Act of 1981 (GRA), 1016 (2006 ed. and Supp. V), and are prepared by the Joint Committee on Taxation as commentaries on recently passed tax laws. Moreover, a document known as the Blue Book compels a different result, since it contains no indication that the misapplication of one of those legal rules cannot trigger the penalties, and since the parentheses thus do not justifyrobbing the term of its independent and ordinary significance. This holding does not make superfluous the new penalty that Congress enacted in 2010 for transactions lacking in economic substance, which covers all sham transactions, including those that do not cause the taxpayer to misrepresent value or basis; thus, it can apply in situations where the valuation penalty cannot. Nor does the holding bode an odd procedural result: The IRS will be able to assess the penalty directly, but it will have to use deficiency proceedings to assess the tax underpayment upon which it is imposed. See §6230(a)(2)(A)(i). Even if the underpayment attributable to an affected item is exempt so long as the affected item does not require partner level determinations, it will still have to

2013_12-1146

https://www.oyez.org/cases/2013/12-1146

with respect to Parts I and II. Acting pursuant to the Clean Air Act, 69Stat. 322, as amended, 42 U. S. C. §§7401–7671q, the Environmental Protection Agency recently set standards for emissions of “greenhouse gases” (substances it believes contribute to “global climate change”) from new motor vehicles. We must decide whether it was permissible for EPA to determine that its motor-vehicle greenhouse-gas regulations automatically triggered permitting requirements under the Act for stationary sources that emit greenhouse gases. I. Background A. Stationary-Source Permitting The Clean Air Act regulates pollution-generating emissions from both stationary sources, such as factories and powerplants, and moving sources, such as cars, trucks, and aircraft. This litigation concerns permitting obligations imposed on stationary sources under Titles I and V of the Act. Title I charges EPA with formulating national ambient air quality standards (NAAQS) for air pollutants. §§7408–7409. To date, EPA has issued NAAQS for six pollutants: sulfur dioxide, particulate matter, nitrogen dioxide, carbon monoxide, ozone, and lead. Clean Air Act Handbook 125 (J. Domike & A. Zacaroli eds., 3d ed. 2011); see generally 40 CFR pt. 50 (2013). States have primary responsibility for implementing the NAAQS by developing “State implementation plans.” 42 U. S. C. §7410. A State must designate every area within its borders as “attainment,” “nonattainment,” or “unclassifiable” with respect to each NAAQS, §7407(d), and the State’s implementation plan must include permitting programs for stationary sources that vary according to the classification of the area where the source is or is proposed to be located. §7410(a)(2)(C), (I). Stationary sources in areas designated attainment or unclassifiable are subject to the Act’s provisions relating to “Prevention of Significant Deterioration” (PSD). §§7470–7492. EPA interprets the PSD provisions to apply to sources located in areas that are designated attainment or unclassifiable for any NAAQS pollutant, regardless of whether the source emits that specific pollutant. Since the inception of the PSD program, every area of the country has been designated attainment or unclassifiable for at least one NAAQS pollutant; thus, on EPA’s view, all stationary sources are potentially subject to PSD review. It is unlawful to construct or modify a “major emitting facility” in “any area to which [the PSD program] applies” without first obtaining a permit. §§7475(a)(1), 7479(2)(C). To qualify for a permit, the facility must not cause or contribute to the violation of any applicable air-quality standard, §7475(a)(3), and it must comply with emissions limitations that reflect the “best available control technology” (or BACT) for “each pollutant subject to regulation under” the Act. §7475(a)(4). The Act defines a “major emitting facility” as any stationary source with the potential to emit 250 tons per year of “any air pollutant” (or 100 tons per year for certain types of sources). §7479(1). It defines “modification” as a physical or operational change that causes the facility to emit more of “any air pollutant.” §7411(a)(4).[1] In addition to the PSD permitting requirements for construction and modification, Title V of the Act makes it unlawful to operate any “major source,” wherever located, without a comprehensive operating permit. §7661a(a). Unlike the PSD program, Title V generally does not impose any substantive pollution-control requirements. Instead, it is designed to facilitate compliance and enforcement by consolidating into a single document all of a facility’s obligations under the Act. The permit must include all “emissions limitations and standards” that apply to the source, as well as associated inspection, monitoring, and reporting requirements. §7661c(a)–(c). Title V defines a “major source” by reference to the Act-wide definition of “major stationary source,” which in turn means any stationary source with the potential to emit 100 tons per year of “any air pollutant.” §§7661(2)(B), 7602( j). B. EPA’s Greenhouse-Gas Regulations In 2007, the Court held that Title II of the Act “authorize[d] EPA to regulate greenhouse gas emissions from new motor vehicles” if the Agency “form[ed] a ‘judgment’ that such emissions contribute to climate change.” Massachusetts v. EPA, 549 U. S. 497 (quoting §7521(a)(1)). In response to that decision, EPA embarked on a course of regulation resulting in “the single largest expansion in the scope of the [Act] in its history.” Clean Air Act Handbook, at xxi. EPA first asked the public, in a notice of proposed rulemaking, to comment on how the Agency should respond to Massachusetts. In doing so, it explained that regulating greenhouse-gas emissions from motor vehicles could have far-reaching consequences for stationary sources. Under EPA’s view, once greenhouse gases became regulated under any part of the Act, the PSD and Title V permitting requirements would apply to all stationary sources with the potential to emit greenhouse gases in excess of the statutory thresholds: 100 tons per year under Title V, and 100 or 250 tons per year under the PSD program depending on the type of source. 73 Fed. Reg. 44420, 44498, 44511 (2008). Because greenhouse-gas emissions tend to be “orders of magnitude greater” than emissions of conventional pollutants, EPA projected that numerous small sources not previously regulated under the Act would be swept into the PSD program and Title V, including “smaller industrial sources,” “large office and residential build-ings, hotels, large retail establishments, and similar facilities.” Id., at 44498–44499. The Agency warned that this would constitute an “unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household in the land,” yet still be “relatively ineffective at reducing greenhouse gas concentrations.” Id., at 44355.[2] In 2009, EPA announced its determination regarding the danger posed by motor-vehicle greenhouse-gas emissions. EPA found that greenhouse-gas emissions from new motor vehicles contribute to elevated atmospheric concentrations of greenhouse gases, which endanger public health and welfare by fostering global “climate change.” 74 Fed. Reg. 66523, 66537 (hereinafter Endangerment Finding). It denominated a “single air pollutant” the “combined mix” of six greenhouse gases that it identified as “the root cause of human-induced climate change”: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. Id., at 66516, 66537. A source’s greenhouse-gas emissions would be measured in “carbon dioxide equivalent units” (CO2e), which would be calculated based on each gas’s “global warming potential.” Id., at 66499, n. 4. Next, EPA issued its “final decision” regarding the prospect that motor-vehicle greenhouse-gas standards would trigger stationary-source permitting requirements. 75 Fed. Reg. 17004 (2010) (hereinafter Triggering Rule). EPA announced that beginning on the effective date of its greenhouse-gas standards for motor vehicles, stationary sources would be subject to the PSD program and Title V on the basis of their potential to emit greenhouse gases. As expected, EPA in short order promulgated greenhouse-gas emission standards for passenger cars, light-duty trucks, and medium-duty passenger vehicles to take effect on January 2, 2011. 75 Fed. Reg. 25324 (hereinafter Tailpipe Rule). EPA then announced steps it was taking to “tailor” the PSD program and Title V to greenhouse gases. 75 Fed. Reg. 31514 (hereinafter Tailoring Rule). Those steps were necessary, it said, because the PSD program and Title V were designed to regulate “a relatively small number of large industrial sources,” and requiring permits for all sources with greenhouse-gas emissions above the statu-tory thresholds would radically expand those programs, making them both unadministrable and “unrecognizable to the Congress that designed” them. Id., at 31555, 31562. EPA nonetheless rejected calls to exclude greenhouse gases entirely from those programs, asserting that the Act is not “ambiguous with respect to the need to cover [greenhouse-gas] sources under either the PSD or title V program.” Id., at 31548, n. 31. Instead, EPA adopted a “phase-in approach” that it said would “appl[y] PSD and title V at threshold levels that are as close to the statutory levels as possible, and do so as quickly as possible, at least to a certain point.” Id., at 31523. The phase-in, EPA said, would consist of at least three steps. During Step 1, from January 2 through June 30, 2011, no source would become newly subject to the PSD program or Title V solely on the basis of its greenhouse-gas emissions; however, sources required to obtain permits anyway because of their emission of conventional pollutants (so-called “anyway” sources) would need to comply with BACT for greenhouse gases if they emitted those gases in significant amounts, defined as at least 75,000 tons per year CO2e. Ibid. During Step 2, from July 1, 2011, through June 30, 2012, sources with the potential to emit at least 100,000 tons per year CO2e of greenhouse gases would be subject to PSD and Title V permitting for their construction and operation and to PSD permitting for modifications that would increase their greenhouse-gas emissions by at least 75,000 tons per year CO2e. Id., at 31523–31524.[3] At Step 3, beginning on July 1, 2013, EPA said it might (or might not) further reduce the permitting thresholds (though not below 50,000 tons per year CO2e), and it might (or might not) establish permanent exemptions for some sources. Id., at 31524. Beyond Step 3, EPA promised to complete another round of rulemaking by April 30, 2016, in which it would “take further action to address small sources,” which might (or might not) include establishing permanent exemptions. Id., at 31525. EPA codified Steps 1 and 2 at 40 CFR §§51.166(b)(48) and 52.21(b)(49) for PSD and at §§70.2 and 71.2 for Title V, and it codified its commitments regarding Step 3 and beyond at §§52.22, 70.12, and 71.13. See Tailoring Rule 31606–31608. After the decision below, EPA issued its final Step 3 rule, in which it decided not to lower the thresholds it had established at Step 2 until at least 2016. 77 Fed. Reg. 41051 (2012). C. Decision Below Numerous parties, including several States, filed petitions for review in the D. C. Circuit under 42 U. S. C. §7607(b), challenging EPA’s greenhouse-gas-related actions. The Court of Appeals dismissed some of the petitions for lack of jurisdiction and denied the remainder. Coalition for Responsible Regulation, Inc. v. EPA, 684 F. 3d 102 (2012) (per curiam). First, it upheld the Endangerment Finding and Tailpipe Rule. Id., at 119, 126. Next, it held that EPA’s interpretation of the PSD permitting requirement as applying to “any regulated air pollutant,” including greenhouse gases, was “compelled by the statute.” Id., at 133–134. The court also found it “crystal clear that PSD permittees must install BACT for greenhouse gases.” Id., at 137. Because it deemed petitioners’ arguments about the PSD program insufficiently applicable to Title V, it held they had “forfeited any challenges to EPA’s greenhouse gas-inclusive interpretation of Title V.” Id., at 136. Finally, it held that petitioners were without Article III standing to challenge EPA’s efforts to limit the reach of the PSD program and Title V through the Triggering and Tailoring Rules. Id., at 146. The court denied rehearing en banc, with Judges Brown and Kavanaugh each dissenting. No. 09–1322 etc. (Dec. 20, 2012), App. 139, 2012 WL 6621785. We granted six petitions for certiorari but agreed to decide only one question: “ ‘Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.’ ” 571 U. S. ____ (2013). II. Analysis This litigation presents two distinct challenges to EPA’s stance on greenhouse-gas permitting for stationary sources. First, we must decide whether EPA permissibly determined that a source may be subject to the PSD and Title V permitting requirements on the sole basis of the source’s potential to emit greenhouse gases. Second, we must decide whether EPA permissibly determined that a source already subject to the PSD program because of its emission of conventional pollutants (an “anyway” source) may be required to limit its greenhouse-gas emissions by employing the “best available control technology” for greenhouse gases. The Solicitor General joins issue on both points but evidently regards the second as more important; he informs us that “anyway” sources account for roughly 83% of American stationary-source greenhouse-gas emissions, compared to just 3% for the additional, non-“anyway” sources EPA sought to regulate at Steps 2 and 3 of the Tailoring Rule. Tr. of Oral Arg. 52. We review EPA’s interpretations of the Clean Air Act using the standard set forth in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 –843 (1984). Under Chevron, we presume that when an agency-administered statute is ambiguous with respect to what it prescribes, Congress has empowered the agency to resolve the ambiguity. The question for a reviewing court is whether in doing so the agency has acted reasonably and thus has “stayed within the bounds of its statutory authority.” Arlington v. FCC, 569 U. S. ___, ___ (2013) (slip op., at 5) (emphasis deleted). A. The PSD and Title V Triggers We first decide whether EPA permissibly interpreted the statute to provide that a source may be required to obtain a PSD or Title V permit on the sole basis of its potential greenhouse-gas emissions. 1 EPA thought its conclusion that a source’s greenhouse-gas emissions may necessitate a PSD or Title V permit followed from the Act’s unambiguous language. The Court of Appeals agreed and held that the statute “compelled” EPA’s interpretation. 684 F. 3d, at 134. We disagree. The statute compelled EPA’s greenhouse-gas-inclusive interpretation with respect to neither the PSD program nor Title V.[4] The Court of Appeals reasoned by way of a flawed syllogism: Under Massachusetts, the general, Act-wide definition of “air pollutant” includes greenhouse gases; the Act requires permits for major emitters of “any air pollutant”; therefore, the Act requires permits for major emitters of greenhouse gases. The conclusion follows from the premises only if the air pollutants referred to in the permit-requiring provisions (the minor premise) are the same air pollutants encompassed by the Act-wide definition as interpreted in Massachusetts (the major premise). Yet no one—least of all EPA—endorses that proposition, and it is obviously untenable. The Act-wide definition says that an air pollutant is “any air pollution agent or combination of such agents, including any physical, chemical, biological, [or] radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.” §7602(g). In Massachusetts, the Court held that the Act-wide definition includes greenhouse gases because it is all-encompassing; it “embraces all airborne compounds of whatever stripe.” 549 U. S., at 529. But where the term “air pollutant” appears in the Act’s operative provisions, EPA has routinely given it a narrower, context-appropriate meaning. That is certainly true of the provisions that require PSD and Title V permitting for major emitters of “any air pollutant.” Since 1978, EPA’s regulations have interpreted “air pollutant” in the PSD permitting trigger as limited to regulated air pollutants, 43 Fed. Reg. 26403, codified, as amended, 40 CFR §52.21(b)(1)–(2), (50)—a class much narrower than Massachusetts’ “all airborne compounds of whatever stripe,” 549 U. S., at 529. And since 1993 EPA has informally taken the same position with regard to the Title V permitting trigger, a position the Agency ultimately incorporated into some of the regulations at issue here. See Memorandum from Lydia N. Wegman, Deputy Director, Office of Air Quality Planning and Standards, to Air Division Director, Regions I–X, pp. 4–5 (Apr. 26, 1993); Tailoring Rule 31607–31608 (amending 40 CFR §§70.2, 71.2). Those interpretations were appropriate: It is plain as day that the Act does not envision an elaborate, burdensome permitting process for major emitters of steam, oxygen, or other harmless airborne substances. It takes some cheek for EPA to insist that it cannot possibly give “air pollutant” a reasonable, context-appropriate meaning in the PSD and Title V contexts when it has been doing precisely that for decades. Nor are those the only places in the Act where EPA has inferred from statutory context that a generic reference to air pollutants does not encompass every substance falling within the Act-wide definition. Other examples abound: The Act authorizes EPA to enforce new source performance standards (NSPS) against a pre-existing source if, after promulgation of the standards, the source undergoes a physical or operational change that increases its emission of “any air pollutant.” §7411(a)(2), (4), (b)(1)(B). EPA interprets that provision as limited to air pollutants for which EPA has promulgated new source performance standards. 36 Fed. Reg. 24877 (1971), codified, as amended, 40 CFR §60.2; 40 Fed. Reg. 58419 (1975), codified, as amended, 40 CFR §60.14(a). The Act requires a permit for the construction or operation in a nonattainment area of a source with the potential to emit 100 tons per year of “any air pollutant.” §§7502(c)(5), 7602(j). EPA interprets that provision as limited to pollutants for which the area is designated nonattainment. 45 Fed. Reg. 52745 (1980), promulgating 40 CFR §51.18(j)(2), as amended, §51.165(a)(2). The Act directs EPA to require “enhanced monitoring and submission of compliance certifications” for any source with the potential to emit 100 tons per year of “any air pollutant.” §§7414(a)(3), 7602(j). EPA interprets that provision as limited to regulated pollutants. 62 Fed. Reg. 54941 (1997), codifiedat 40 CFR §§64.1, 64.2. The Act requires certain sources of air pollutants that interfere with visibility to undergo retrofitting if they have the potential to emit 250 tons per year of “any pollutant.” §7491(b)(2)(A), (g)(7). EPA interprets that provision as limited to visibility-impairing air pollutants. 70 Fed. Reg. 39160 (2005), codified at 40 CFR pt. 51, App. Y, §II.A.3. Although these limitations are nowhere to be found in the Act-wide definition, in each instance EPA has concluded—as it has in the PSD and Title V context—that the statute is not using “air pollutant” in Massachusetts’ broad sense to mean any airborne substance whatsoever. Massachusetts did not invalidate all these longstanding constructions. That case did not hold that EPA must always regulate greenhouse gases as an “air pollutant” everywhere that term appears in the statute, but only that EPA must “ground its reasons for action or inaction in the statute,” 549 U. S., at 535 (emphasis added), rather than on “reasoning divorced from the statutory text,” id., at 532. EPA’s inaction with regard to Title II was not sufficiently grounded in the statute, the Court said, in part because nothing in the Act suggested that regulating greenhouse gases under that Title would conflict with the statutory design. Title II would not compel EPA to regulate in any way that would be “extreme,” “counterintuitive,” or contrary to “ ‘common sense.’ ” Id., at 531. At most, it would require EPA to take the modest step of adding greenhouse-gas standards to the roster of new-motor-vehicle emission regulations. Ibid. Massachusetts does not strip EPA of authority to exclude greenhouse gases from the class of regulable air pollutants under other parts of the Act where their inclusion would be inconsistent with the statutory scheme. The Act-wide definition to which the Court gave a “sweeping” and “capacious” interpretation, id., at 528, 532, is not a command to regulate, but a description of the universe of substances EPA may consider regulating under the Act’s operative provisions. Massachusetts does not foreclose the Agency’s use of statutory context to infer that certain of the Act’s provisions use “air pollutant” to denote not every conceivable airborne substance, but only those that may sensibly be encompassed within the particular regulatory program. As certain amici felicitously put it, while Massachusetts “rejected EPA’s categorical contention that greenhouse gases could not be ‘air pollutants’ for any purposes of the Act,” it did not “embrace EPA’s current, equally categorical position that greenhouse gases must be air pollutants for all purposes” regardless of the statutory context. Brief for Administrative Law Professors et al. as Amici Curiae 17.[5] To be sure, Congress’s profligate use of “air pollutant” where what is meant is obviously narrower than the Act-wide definition is not conducive to clarity. One ordinarily assumes “ ‘that identical words used in different parts of the same act are intended to have the same meaning.’ ” Environmental Defense v. Duke Energy Corp., 549 U. S. 561, 574 (2007) . In this respect (as in countless others), the Act is far from a chef d’oeuvre of legislative draftsmanship. But we, and EPA, must do our best, bearing in mind the “ ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’ ” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000) . As we reiterated the same day we decided Massachusetts, the presumption of consistent usage “ ‘readily yields’ ” to context, and a statutory term—even one defined in the statute—“may take on distinct characters from association with distinct statutory objects calling for different implementation strategies.” Duke Energy, supra, at 574. We need not, and do not, pass on the validity of all the limiting constructions EPA has given the term “air pollutant” throughout the Act. We merely observe that taken together, they belie EPA’s rigid insistence that when interpreting the PSD and Title V permitting requirements it is bound by the Act-wide definition’s inclusion of greenhouse gases, no matter how incompatible that inclusion is with those programs’ regulatory structure. In sum, there is no insuperable textual barrier to EPA’s interpreting “any air pollutant” in the permitting triggers of PSD and Title V to encompass only pollutants emitted in quantities that enable them to be sensibly regulated at the statutory thresholds, and to exclude those atypical pollutants that, like greenhouse gases, are emitted in such vast quantities that their inclusion would radically transform those programs and render them unworkable as written.[6] 2 Having determined that EPA was mistaken in thinking the Act compelled a greenhouse-gas-inclusive interpretation of the PSD and Title V triggers, we next consider the Agency’s alternative position that its interpretation was justified as an exercise of its “discretion” to adopt “a reasonable construction of the statute.” Tailoring Rule 31517. We conclude that EPA’s interpretation is not permissible. Even under Chevron’s deferential framework, agencies must operate “within the bounds of reasonable interpretation.” Arlington, 569 U. S., at ___ (slip op., at 5). And reasonable statutory interpretation must account for both “the specific context in which . . . language is used” and “the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997) . A statutory “provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988) . Thus, an agency interpretation that is “inconsisten[t] with the design and structure of the statute as a whole,” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___, ___ (2013) (slip op., at 13), does not merit deference. EPA itself has repeatedly acknowledged that applying the PSD and Title V permitting requirements to greenhouse gases would be inconsistent with—in fact, would overthrow—the Act’s structure and design. In the Tailoring Rule, EPA described the calamitous consequences of interpreting the Act in that way. Under the PSD program, annual permit applications would jump from about 800 to nearly 82,000; annual administrative costs would swell from $12 million to over $1.5 billion; and decade-long delays in issuing permits would become common, causing construction projects to grind to a halt nationwide. Tailoring Rule 31557. The picture under Title V was equally bleak: The number of sources required to have permits would jump from fewer than 15,000 to about 6.1 million; annual administrative costs would balloon from $62 million to $21 billion; and collectively the newly covered sources would face permitting costs of $147 billion. Id., at 31562–31563. Moreover, “the great majority of additional sources brought into the PSD and title V programs would be small sources that Congress did not expect would need to undergo permitting.” Id., at 31533. EPA stated that these results would be so “contrary to congressional intent,” and would so “severely undermine what Congress sought to accomplish,” that they necessitated as much as a 1,000-fold increase in the permitting thresholds set forth in the statute. Id., at 31554, 31562. Like EPA, we think it beyond reasonable debate that requiring permits for sources based solely on their emission of greenhouse gases at the 100- and 250-tons-per-year levels set forth in the statute would be “incompatible” with “the substance of Congress’ regulatory scheme.” Brown & Williamson, 529 U. S., at 156. A brief review of the relevant statutory provisions leaves no doubt that the PSD program and Title V are designed to apply to, and cannot rationally be extended beyond, a relative handful of large sources capable of shouldering heavy substantive and procedural burdens. Start with the PSD program, which imposes numerous and costly requirements on those sources that are required to apply for permits. Among other things, the applicant must make available a detailed scientific analysis of the source’s potential pollution-related impacts, demonstrate that the source will not contribute to the violation of any applicable pollution standard, and identify and use the “best available control technology” for each regulated pollutant it emits. §7475(a)(3), (4), (6), (e). The permitting authority (the State, usually) also bears its share of the burden: It must grant or deny a permit within a year, during which time it must hold a public hearing on the application. §7475(a)(2), (c). Not surprisingly, EPA acknowledges that PSD review is a “complicated, resource-intensive, time-consuming, and sometimes contentious process” suitable for “hundreds of larger sources,” not “tens of thousands of smaller sources.” 74 Fed. Reg. 55304, 55321–55322. Title V contains no comparable substantive requirements but imposes elaborate procedural mandates. It requires the applicant to submit, within a year of becoming subject to Title V, a permit application and a “compliance plan” describing how it will comply with “all applicable requirements” under the Act; to certify its compliance annually; and to submit to “inspection, entry, monitoring, . . . and reporting requirements.” §§7661b(b)–(c), 7661c(a)–(c). The procedural burdens on the permitting authority and EPA are also significant. The permitting authority must hold a public hearing on the application, §7661a(b)(6), and it must forward the application and any proposed permit to EPA and neighboring States and respond in writing to their comments, §7661d(a), (b)(1). If it fails to issue or deny the permit within 18 months, any interested party can sue to require a decision “without additional delay.” §§7661a(b)(7), 7661b(c). An interested party also can petition EPA to block issuance of the permit; EPA must grant or deny the petition within 60 days, and its decision may be challenged in federal court. §7661d(b)(2)–(3). As EPA wrote, Title V is “finely crafted for thousands,” not millions, of sources. Tailoring Rule 31563. The fact that EPA’s greenhouse-gas-inclusive interpretation of the PSD and Title V triggers would place plainly excessive demands on limited governmental resources is alone a good reason for rejecting it; but that is not the only reason. EPA’s interpretation is also unreasonable because it would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization. When an agency claims to discover in a long-extant statute an unheralded power to regulate “a significant portion of the American economy,” Brown & Williamson, 529 U. S., at 159, we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance.” Id., at 160; see also MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994) ; Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607 –646 (1980) (plurality opinion). The power to require permits for the construction and modification of tens of thousands, and the operation of millions, of small sources nationwide falls comfortably within the class of authorizations that we have been reluctant to read into ambiguous statutory text. Moreover, in EPA’s assertion of that authority, we confront a singular situation: an agency laying claim to extravagant statutory power over the national economy while at the same time strenuously asserting that the authority claimed would render the statute “unrecognizable to the Congress that designed” it. Tailoring Rule 31555. Since, as we hold above, the statute does not compel EPA’s interpretation, it would be patently unreason-able—not to say outrageous—for EPA to insist on seizing expansive power that it admits the statute is not designed to grant.[7] 3 EPA thought that despite the foregoing problems, it could make its interpretation reasonable by adjusting the levels at which a source’s greenhouse-gas emissions would oblige it to undergo PSD and Title V permitting. Although the Act, in no uncertain terms, requires permits for sources with the potential to emit more than 100 or 250 tons per year of a relevant pollutant, EPA in its Tailoring Rule wrote a new threshold of 100,000 tons per year for greenhouse gases. Since the Court of Appeals thought the statute unambiguously made greenhouse gases capable of triggering PSD and Title V, it held that petitioners lacked Article III standing to challenge the Tailoring Rule because that rule did not injure petitioners but merely relaxed the pre-existing statutory requirements. Because we, however, hold that EPA’s greenhouse-gas-inclusive interpretation of the triggers was not compelled, and because EPA has essentially admitted that its interpretation would be unreasonable without “tailoring,” we consider the validity of the Tailoring Rule. We conclude that EPA’s rewriting of the statutory thresholds was impermissible and therefore could not validate the Agency’s interpretation of the triggering provisions. An agency has no power to “tailor” legislation to bureaucratic policy goals by rewriting unambiguous statutory terms. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always “ ‘give effect to the unambiguously expressed intent of Congress.’ ” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 665 (2007) (quoting Chevron, 467 U. S., at 843). It is hard to imagine a statutory term less ambiguous than the precise numerical thresholds at which the Act requires PSD and Title V permitting. When EPA replaced those numbers with others of its own choosing, it went well beyond the “bounds of its statutory authority.” Arlington, 569 U. S., at ___ (slip op., at 5) (emphasis deleted). The Solicitor General does not, and cannot, defend the Tailoring Rule as an exercise of EPA’s enforcement discretion. The Tailoring Rule is not just an announcement of EPA’s refusal to enforce the statutory permitting requirements; it purports to alter those requirements and to establish with the force of law that otherwise-prohibited conduct will not violate the Act. This alteration of the statutory requirements was crucial to EPA’s “tailoring” efforts. Without it, small entities with the potential to emit greenhouse gases in amounts exceeding the statutory thresholds would have remained subject to citizen suits—authorized by the Act—to enjoin their construction, modification, or operation and to impose civil penalties of up to $37,500 per day of violation. §§7413(b), 7604(a), (f)(4); 40 CFR §19.4. EPA itself has recently affirmed that the “independent enforcement authority” furnished by the citizen-suit provision cannot be displaced by a permitting authority’s decision not to pursue enforcement. 78 Fed. Reg. 12477, 12486–12487 (2013). The Solicitor General is therefore quite right to acknowledge that the availability of citizen suits made it necessary for EPA, in seekingto mitigate the unreasonableness of its greenhouse-gas-inclusive interpretation, to go beyond merely exercising its enforcement discretion. See Tr. of Oral Arg. 87–88. For similar reasons, Morton v. Ruiz, 415 U. S. 199 (1974) —to which the Solicitor General points as the best case supporting the Tailoring Rule, see Tr. of Oral Arg. 71, 80–81—is irrelevant. In Ruiz, Congress had appropriated funds for the Bureau of Indian Affairs to spend on providing assistance to “ ‘Indians throughout the United States’ ” and had not “impose[d] any geographical limitation on the availability of general assistance benefits.” Id., at 206–207, and n. 7. Although we held the Bureau could not deny benefits to off-reservation Indians because it had not published its eligibility criteria, we stated in dictum that the Bureau could, if it followed proper administrative procedures, “create reasonable classifications and eligibility requirements in order to allocate the limited funds available.” Id., at 230–231. That dictum stands only for the unremarkable proposition that an agency may adopt policies to prioritize its expenditures within the bounds established by Congress. See also Lincoln v. Vigil, 508 U. S. 182 –193 (1993). Nothing in Ruiz remotely authorizes an agency to modify unambiguous requirements imposed by a federal statute. An agency confronting resource constraints may change its own conduct, but it cannot change the law. Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers. Under our system of government, Congress makes laws and the President, acting at times through agencies like EPA, “faithfully execute[s]” them. U. S. Const., Art. II, §3; see Medellín v. Texas, 552 U. S. 491 –527 (2008). The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice. See, e.g., Barnhart v. Sigmon Coal Co., 534 U. S. 438, 462 (2002) (agency lacked authority “to develop new guidelines or to assign liability in a manner inconsistent with” an “unambiguous statute”). In the Tailoring Rule, EPA asserts newfound authority to regulate millions of small sources—including retail stores, offices, apartment buildings, shopping centers, schools, and churches—and to decide, on an ongoing basis and without regard for the thresholds prescribed by Congress, how many of those sources to regulate. We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery. We reaffirm the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate. EPA therefore lacked authority to “tailor” the Act’s unambiguous numerical thresholds to accommodate its greenhouse-gas-inclusive interpretation of the permitting triggers. Instead, the need to rewrite clear provisions of the statute should have alerted EPA that it had taken a wrong interpretive turn. Agencies are not free to “adopt . . . unreasonable interpretations of statutory provisions and then edit other statu-tory provisions to mitigate the unreasonableness.” App. 175, 2012 WL 6621785, *16 (Kavanaugh, J., dissenting from denial of rehearing en banc). Because the Tailoring Rule cannot save EPA’s interpretation of the triggers, that interpretation was impermissible under Chevron.[8] B. BACT for “Anyway” Sources For the reasons we have given, EPA overstepped its statutory authority when it decided that a source could become subject to PSD or Title V permitting by reason of its greenhouse-gas emissions. But what about “anyway” sources, those that would need permits based on their emissions of more conventional pollutants (such as particulate matter)? We now consider whether EPA reasonably interpreted the Act to require those sources to comply with “best available control technology” emission standards for greenhouse gases. 1 To obtain a PSD permit, a source must be “subject to the best available control technology” for “each pollutant subject to regulation under [the Act]” that it emits. §7475(a)(4). The Act defines BACT as “an emission limitation based on the maximum degree of reduction of each pollutant subject to regulation” that is “achievable . . . through application of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques.” §7479(3). BACT is determined “on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs.” Ibid. Some petitioners urge us to hold that EPA may never require BACT for greenhouse gases—even when a source must undergo PSD review based on its emissions of conventional pollutants—because BACT is fundamentally unsuited to greenhouse-gas regulation. BACT, they say, has traditionally been about end-of-stack controls “such as catalytic converters or particle collectors”; but applying it to greenhouse gases will make it more about regulating energy use, which will enable regulators to control “every aspect of a facility’s operation and design,” right down to the “light bulbs in the factory cafeteria.” Brief for Petitioner Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation et al. in No. 12–1254, p. 7; see Joint Reply Brief for Petitioners in No. 12–1248 etc., pp. 14–15 (“BACT for [greenhouse gases] becomes an unbounded exercise in command-and-control regulation” of everything from “efficient light bulbs” to “basic industrial processes”). But see Brief for Calpine Corp. as Amicus Curiae 10 (“[I]n Calpine’s experience with ‘anyway’ sources, the [greenhouse-gas] analysis was only a small part of the overall permitting process”). EPA has published a guidance document that lends some credence to petitioners’ fears. It states that at least initially, compulsory improvements in energy efficiency will be the “foundation” of greenhouse-gas BACT, with more traditional end-of-stack controls either not used or “added as they become more available.” PSD and Title V Permitting Guidance for Greenhouse Gases 29 (Mar. 2011) (hereinafter Guidance); see Peloso & Dobbins, Greenhouse Gas PSD Permitting: The Year in Review, 42 Tex. Env. L. J. 233, 247 (2012) (“Because [other controls] tend to prove infeasible, energy efficiency measures dominate the [greenhouse-gas] BACT controls approved by the states and EPA”). But EPA’s guidance also states that BACT analysis should consider options other than energy efficiency, such as “carbon capture and storage.” Guidance 29, 32, 35–36, 42–43. EPA argues that carbon capture is reasonably comparable to more traditional, end-of-stack BACT technologies, id., at 32, n. 86, and petitioners do not dispute that. Moreover, assuming without deciding that BACT may be used to force some improvements in energy efficiency, there are important limitations on BACT that may work to mitigate petitioners’ concerns about “unbounded” regulatory authority. For one, BACT is based on “control technology” for the applicant’s “proposed facility,” §7475(a)(4); therefore, it has long been held that BACT cannot be used to order a fundamental redesign of the facility. See, e.g., Sierra Club v. EPA, 499 F. 3d 653, 654–655 (CA7 2007); In re Pennsauken Cty., N. J., Resource Recovery Facility, 2 E. A. D. 667, 673 (EAB 1988). For another, EPA has long interpreted BACT as required only for pollutants that the source itself emits, see 44 Fed. Reg. 51947 (1979); accordingly, EPA acknowledges that BACT may not be used to require “reductions in a facility’s demand for energy from the electric grid.” Guidance 24. Finally, EPA’s guidance suggests that BACT should not require every conceivable change that could result in minor improvements in energy efficiency, such as the aforementioned light bulbs. Id., at 31. The guidance explains that permitting authorities should instead consider whether a proposed regulatory burden outweighs any reduction in emissions to be achieved, and should concentrate on the facility’s equipment that uses the largest amounts of energy. Ibid. 2 The question before us is whether EPA’s decision to require BACT for greenhouse gases emitted by sources otherwise subject to PSD review is, as a general matter, a permissible interpretation of the statute under Chevron. We conclude that it is. The text of the BACT provision is far less open-ended than the text of the PSD and Title V permitting triggers. It states that BACT is required “for each pollutant subject to regulation under this chapter” (i.e., the entire Act), §7475(a)(4), a phrase that—as the D. C. Circuit wrote 35 years ago—“would not seem readily susceptible [of] misinterpretation.” Alabama Power Co. v. Costle, 636 F. 2d 323, 404 (1979). Whereas the dubious breadth of “any air pollutant” in the permitting triggers suggests a role for agency judgment in identifying the subset of pollutants covered by the particular regulatory program at issue, the more specific phrasing of the BACT provision suggests that the necessary judgment has already been made by Congress. The wider statutory context likewise does not suggest that the BACT provision can bear a narrowing construction: There is no indication that the Act elsewhere uses, or that EPA has interpreted, “each pollutant subject to regulation under this chapter” to mean anything other than what it says. Even if the text were not clear, applying BACT to greenhouse gases is not so disastrously unworkable, and need not result in such a dramatic expansion of agency authority, as to convince us that EPA’s interpretation is unreasonable. We are not talking about extending EPA jurisdiction over millions of previously unregulated entities, but about moderately increasing the demands EPA (or a state permitting authority) can make of entities already subject to its regulation. And it is not yet clear that EPA’s demands will be of a significantly different character from those traditionally associated with PSD review. In short, the record before us does not establish that the BACT provision as written is incapable of being sensibly applied to greenhouse gases. We acknowledge the potential for greenhouse-gas BACT to lead to an unreasonable and unanticipated degree of regulation, and our decision should not be taken as an endorsement of all aspects of EPA’s current approach, nor as a free rein for any future regulatory application of BACT in this distinct context. Our narrow holding is that nothing in the statute categorically prohibits EPA from interpreting the BACT provision to apply to greenhouse gases emitted by “anyway” sources. However, EPA may require an “anyway” source to comply with greenhouse-gas BACT only if the source emits more than a de minimis amount of greenhouse gases. As noted above, the Tailoring Rule applies BACT only if a source emits greenhouse gases in excess of 75,000 tons per year CO2e, but the Rule makes clear that EPA did not arrive at that number by identifying the de minimis level. See nn. 1, 3, supra. EPA may establish an appropriate de minimis threshold below which BACT is not required for a source’s greenhouse-gas emissions. We do not hold that 75,000 tons per year CO2e necessarily exceeds a true de minimis level, only that EPA must justify its selection on proper grounds. Cf. Alabama Power, supra, at 405.[9] * * * To sum up: We hold that EPA exceeded its statutory authority when it interpreted the Clean Air Act to require PSD and Title V permitting for stationary sources based on their greenhouse-gas emissions. Specifically, the Agency may not treat greenhouse gases as a pollutant for pur-poses of defining a “major emitting facility” (or a “modification” thereof) in the PSD context or a “major source” in the Title V context. To the extent its regulations purport to do so, they are invalid. EPA may, however, continue to treat greenhouse gases as a “pollutant subject to regulation under this chapter” for purposes of requiring BACT for “anyway” sources. The judgment of the Court of Appeals is affirmed in part and reversed in part. It is so ordered.Notes 1 Although the statute sets numerical thresholds (100 or 250 tons per year) for emissions that will make a facility “major,” it does not specify by how much a physical or operational change must increase emissions to constitute a permit-requiring “modification.” Nor does it say how much of a given regulated pollutant a “major emitting facility” must emit before it is subject to BACT for that pollutant. EPA, however, has established pollutant-specific numerical thresholds below which a facility’s emissions of a pollutant, and increases therein, are considered for those purposes. See 40 CFR §§51.166(b)(2)(i), (23), (39), (j)(2)–(3), 52.21(b)(2)(i), (23), (40), (j)(2)–(3); see also v. , 636 F. 2d 323, 360–361, 400, 405 (CADC 1979) (recognizing this authority in EPA); cf. v. , (“ . . . is part of the established background of legal principles against which all enactments are adopted”). 2 Comments from other Executive Branch agencies reprinted in the notice echoed those concerns. See, 73 Fed. Reg. 44360 (Departments of Agriculture, Commerce, Transportation, and Energy noting EPA would “exercis[e] de facto zoning authority through control over thousands of what formerly were local or private decisions, impacting the construction of schools, hospitals, and commercial and residential development”); at 44383 (Council of Economic Advisers and Office of Science and Technology Policy stating that “[s]mall manufacturing facilities, schools, and shopping centers” would be subject to “full major source permitting”); at 44385 (Council on Environmental Quality noting “the prospect of essentially automatic and immediate regulation over a vast range of community and business activity”); at 44391 (Small Business Administration finding it “difficult to overemphasize how potentially disruptive and burdensome such a new regulatory regime would be to small entities” such as “office buildings, retail establishments, hotels, . . . schools, prisons, and private hospitals”). 3 EPA stated that its adoption of a 75,000-tons-per-year threshold for emissions requiring BACT and modifications requiring permits was not an exercise of its authority to establish exceptions and that a truly level might be “well below” 75,000 tons per year. Tailoring Rule 31560; cf. n. 1, . 4 The Court of Appeals held that petitioners’ arguments applied only to the PSD program and that petitioners had therefore “forfeited any challenges to EPA’s greenhouse gas-inclusive interpretation of Title V.” 684 F. 3d, at 136. The Solicitor General does not defend the Court of Appeals’ ruling on forfeiture, and he concedes that some of the arguments petitioners have made before this Court apply to Title V as well as the PSD program. See Brief for Federal Respondents 56. We agree, and we are satisfied that those arguments were also made below. See, Brief for State Petitioners et al. in No. 10–1073 etc. (CADC), pp. 59–73; Brief for Non-State Petitioners et al. in No. 10–1073 etc. (CADC), pp. 46–47. 5 Our decision in v. , 564 U. S. ___ (2011), does not suggest otherwise. We there held that the Act’s authorization for EPA to establish performance standards for powerplant greenhouse-gas emissions displaced any federal-common-law right that might otherwise have existed to seek abatement of those emissions. at ___ (slip op., at 10). The authorization to which we referred was that given in the NSPS program of §7411, a part of the Act not at issue here and one that no party in argued was ill suited to accommodating greenhouse gases. 6 During the course of this litigation, several possible limiting constructions for the PSD trigger have been proposed. Judge Kavanaugh argued below that it would be plausible for EPA to read “any air pollutant” in the PSD context as limited to the six NAAQS pollutants. See v. , No. 09–1322 etc. (CADC, Dec. 20, 2012), App. 171–180, 2012 WL 6621785, *15–*18 (opinion dissenting from denial of rehearing en banc). Some petitioners make a slightly different argument: that because PSD permitting is required only for major emitting facilities “in any area to which [the PSD program] applies,” §7475(a), the relevant pollutants are only those NAAQS pollutants for which the area in question is designated attainment or unclassifiable. That approach would bring EPA’s interpretation of the PSD trigger in line with its longstanding interpretation of the permitting requirements for nonattainment areas. Others maintain that “any air pollutant” in the PSD provision should be limited to air pollutants with localized effects on air quality. We do not foreclose EPA or the courts from considering those constructions in the future, but we need not do so today. 7 A few additional points bear mentioning. The Solicitor General conjectures that EPA might eventually alter its longstanding interpretation of “potential to emit” in order to reduce the number of sources required to have permits at the statutory thresholds. But neither he nor the Agency has given us any reason to believe that there exists a plausible reading of “potential to emit” that EPA would willingly adopt and that would eliminate the unreasonableness of EPA’s interpretation. Nor have we been given any information about the ability of other possible “streamlining” techniques alluded to by EPA—such as “general” or “electronic” permitting—to reduce the administrability problems identified above; and in any event, none of those techniques would address the more fundamental problem of EPA’s claiming regulatory authority over millions of small entities that it acknowledges the Act does not seek to regulate. Finally, the Solicitor General suggests that the incompatibility of greenhouse gases with the PSD program and Title V results chiefly from the inclusion of carbon dioxide in the “aggregate pollutant” defined by EPA. We decide these cases on the basis of the pollutant “greenhouse gases” as EPA has defined and regulated it, and we express no view on how our analysis might change were EPA to define it differently. 8 argues, at 10 (opinion concurring in part and dissenting in part), that when the statutory permitting thresholds of 100 or 250 tons per year do not provide a “sensible regulatory line,” EPA is entitled to “read an unwritten exception” into “the particular number used by the statute”—by which he apparently means that the Agency is entitled to substitute a dramatically higher number, such as 100,000. We are aware of no principle of administrative law that would allow an agency to rewrite such a clear statutory term, and we shudder to contemplate the effect that such a principle would have on demo-cratic governance. 9 argues that BACT is “fundamentally incompatible” with greenhouse gases for two reasons. at 4 (opinion concurring in part and dissenting in part). First, BACT requires consideration of “ambient air quality at the proposed site and in areas which may be affected by emissions from [the proposed] facility for each pollutant subject to regulation under this chapter,” §7475(e)(1); see also §7475(e)(3)(B); and it is not obvious how that requirement should apply, or even whether it can apply, to greenhouse gases. , at 4–5. But the possibility that that requirement may be inoperative as to greenhouse gases does not convince us that they must be categorically excluded from BACT even though they are indisputably a “pollutant subject to regulation.” Second, argues that EPA’s guidance on how to implement greenhouse-gas BACT is a recipe for “arbitrary and inconsistent decisionmaking.” at 8. But we are not reviewing EPA’s guidance in these cases, and we cannot say that it is impossible for EPA and state permitting authorities to devise rational ways of complying with the statute’s directive to determine BACT for greenhouse gases “on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs.” §7479(3).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UTILITY AIR REGULATORY GROUP v. ENVIRONMENTAL PROTECTION AGENCY et al. certiorari to the united states court of appeals for the district of columbia circuit No. 12–1146. Argued February 24, 2014—Decided June 23, 2014 [1] The Clean Air Act imposes permitting requirements on stationary sources, such as factories and powerplants. The Act’s “Prevention of Significant Deterioration” (PSD) provisions make it unlawful to construct or modify a “major emitting facility” in “any area to which [the PSD program] applies” without a permit. §§7475(a)(1), 7479(2)(C). A “major emitting facility” is a stationary source with the potential to emit 250 tons per year of “any air pollutant” (or 100 tons per year for certain types of sources). §7479(1). Facilities seeking to qualify for a PSD permit must, inter alia, comply with emissions limitations that reflect the “best available control technology” (BACT) for “each pollutant subject to regulation under” the Act. §7475(a)(4). In addition, Title V of the Act makes it unlawful to operate any “major source,” wherever located, without a permit. §7661a(a). A “major source” is a stationary source with the potential to emit 100 tons per year of “any air pollutant.” §§7661(2)(B), 7602(j). In response to Massachusetts v. EPA, 549 U.S. 497, EPA promulgated greenhouse-gas emission standards for new motor vehicles, and made stationary sources subject to the PSD program and Title V on the basis of their potential to emit greenhouse gases. It recognized, however, that requiring permits for all sources with greenhouse-gas emissions above the statutory thresholds would radically expand those programs and render them unadministrable. So EPA purported to “tailor” the programs to accommodate greenhouse gases by providing, among other things, that sources would not become newly subject to PSD or Title V permitting on the basis of their potential to emit greenhouse gases in amounts less than 100,000 tons per year. Numerous parties, including several States, challenged EPA’s actions in the D. C. Circuit, which dismissed some of the petitions for lack of jurisdiction and denied the remainder. Held: The judgment is affirmed in part and reversed in part. 684 F.3d 102, affirmed in part and reversed in part. Justice Scalia delivered the opinion of the Court with respect to Parts I and II, concluding: 1. The Act neither compels nor permits EPA to adopt an interpretation of the Act requiring a source to obtain a PSD or Title V permit on the sole basis of its potential greenhouse-gas emissions. . (a) The Act does not compel EPA’s interpretation. Massachusetts held that the Act-wide definition of “air pollutant” includes greenhouse gases, 549 U. S., at 529, but where the term “air pollutant” appears in the Act’s operative provisions, including the PSD and Title V permitting provisions, EPA has routinely given it a narrower, context-appropriate meaning. Massachusetts did not invalidate those longstanding constructions. The Act-wide definition is not a command to regulate, but a description of the universe of substances EPA may consider regulating under the Act’s operative provisions. Though Congress’s profligate use of “air pollutant” is not conducive to clarity, the presumption of consistent usage “ ‘readily yields’ ” to context, and a statutory term “may take on distinct characters from association with distinct statutory objects calling for different implementation strategies.” Environmental Defense v. Duke Energy Corp., 549 U.S. 561, 574. . (b) Nor does the Act permit EPA’s interpretation. Agencies empowered to resolve statutory ambiguities must operate “within the bounds of reasonable interpretation,” Arlington v. FCC, 569 U. S. ___, ___. EPA has repeatedly acknowledged that applying the PSD and Title V permitting requirements to greenhouse gases would be inconsistent with the Act’s structure and design. A review of the relevant statutory provisions leaves no doubt that the PSD program and Title V are designed to apply to, and cannot rationally be extended beyond, a relative handful of large sources capable of shouldering heavy substantive and procedural burdens. EPA’s interpretation would also bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160. . (c) EPA lacked authority to “tailor” the Act’s unambiguous numerical thresholds of 100 or 250 tons per year to accommodate its greenhouse-gas-inclusive interpretation of the permitting triggers. Agencies must always “ ‘give effect to the unambiguously expressed intent of Congress.’ ” National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665. The power to execute the laws does not include a power to revise clear statutory terms that turn out not to work in practice. . 2. EPA reasonably interpreted the Act to require sources that would need permits based on their emission of conventional pollutants to comply with BACT for greenhouse gases. . (a) Concerns that BACT, which has traditionally been about end-of-stack controls, is fundamentally unsuited to greenhouse-gas regulation, which is more about energy use, are not unfounded. But an EPA guidance document states that BACT analysis should consider options other than energy efficiency, including “carbon capture and storage,” which EPA contends is reasonably comparable to more traditional, end-of-stack BACT technologies. Moreover, assuming that BACT may be used to force improvements in energy efficiency, important limitations on BACT may work to mitigate concerns about “unbounded” regulatory authority. . (b) EPA’s decision to require BACT for greenhouse gases emitted by sources otherwise subject to PSD review is, as a general matter, a permissible interpretation of the statute under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837. The specific phrasing of the BACT provision—which requires BACT “for each pollutant subject to regulation under” the Act, §7475(a)(4)—does not suggest that the provision can bear a narrowing construction. And even if the text were not clear, applying BACT to greenhouse gases is not so disastrously unworkable, and need not result in such a dramatic expansion of agency authority, as to make EPA’s interpretation unreasonable. . Scalia, J., announced the judgment of the Court and delivered an opinion, Parts I and II of which were for the Court. Roberts, C. J., and Kennedy, J., joined that opinion in full; Thomas and Alito, JJ., joined as to Parts I, II–A, and II–B–1; and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined as to Part II–B–2. Breyer J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined. Notes 1 Together with No. 12–1248, American Chemistry Council et al. v. Environmental Protection Agency et al., No. 12–1254, Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation et al. v. Environmental Protection Agency et al., No. 12–1268, Southeastern Legal Foundation, Inc., et al. v. Environmental Protection Agency et al., No. 12–1269, Texas et al. v. Environmental Protection Agency et al., and No. 12–1272, Chamber of Commerce of United States States et al. v. Environmental Protection Agency et al., also on certiorari to the same court.

The Clean Air Act (Act) charges the Environmental Protection Agency (EPA) with formulating national ambient air quality standards (NAAQS) for air pollutants. Title I of the Act charges EPA, in charge of formulating state implementation plans, with primary responsibility for formulating the standards. The implementing plan must include permitting programs for stationary sources that vary according to the classification of the area where the source is or is proposed to be located. Title V makes it unlawful to construct or modify a stationary source in any area to which the PSD program applies without first obtaining a permit. To qualify for a permit, the facility must not cause or contribute to the violation of any applicable air-quality standard, and must comply with emissions limitations that reflect the best available control technology (BACT) for each pollutant subject to regulation under the Act. Title VI makes it illegal to operate any "major emitting facility," wherever located, without a comprehensive operating permit. Section 7661a(a) of Title V defines a source as any stationary source with the potential to emit 250 tons per year of any air pollutant, or 100 tons a year for certain types of sources, and defines "modification" as a physical or operational change that causes the facility to emit more of the pollutant. In addition to the BACT permitting requirements for construction and modification, Title V requires permits for all sources with greenhouse-gas emissions above the statu-tory threshold, but does not impose any substantive pollution-control requirements. Instead, it is designed to facilitate compliance and consolidating all compliance obligations into a single document, and to include compliance obligations that apply to all stationary sources. From January 1, 2011, through June 30, 2012, sources with a potential to exceed the statutory threshold for emissions of greenhouse gases would be subject to PSD and Title V permitting for their construction and operation and to BACT for modifications that would increase their emissions by at least 75,000 tons annually. During this period, EPA announced its determination regarding the danger posed by motor-vehicle emissions. EPA interprets the Act-wide provisions to apply to sources located in areas that are designated attainment or unclassifiable for any pollutant regardless of whether the source emits that pollutant; thus, on EPA's view, stationary sources are potentially subject to PD review. Since the inception of the program, every area of the country has been designated attainment or unclassified for at least one pollutant pollutant (carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, and other pollutants). Thus, on petitioners' petition for review in the D. C. Circuit, the Court of Appeals dismissed some of the petitions for lack of jurisdiction and denied the remainder. First, it upheld the Endangerment Finding and Tailpipe Rule. Second, it held that EPA permissibly determined that a source may be required to obtain a PSD or Title V permit on the sole basis of its potential emissions, and that petitioners had forfeited any challenges to EPA's greenhouse gas-inclusive interpretation. The court also held that the petitioners lacked Article III standing to challenge EPA. Held: EPA exceeded its statutory authority when it interpreted the Act to require PSD, Title VI permitting for stationary source based on their emissions. (1) EPA thought its conclusion that the source's emissions may necessitate a PD permit followed from the Act's unambiguous language, and the statute compelled EPA to interpret that interpretation with respect to neither PD program nor Title V. To the extent its regulations purport to do so, they are invalid. EPA therefore lacked authority to interpret the statute to encompass only pollutants emitted in quantities that enable them to be sensibly regulated at the statutory thresholds and to exclude those atypical pollutants that, like greenhouse gases, are emitted in such vast quantities that their inclusion would radically transform those programs and render them unworkable as written. EPA should not treat greenhouse gases as a pollutant for pur-poses of defining a major emitting facility (or a modification thereof) as limited to visibility-impairing air pollutants; EPA should instead consider whether a proposed regulatory burden outweighs any reduction in emissions to be achieved, and should concentrate on the facility's equipment that uses the largest amounts of energy. (2) EPA also erred in concluding that the statute is not using air pollutants in Massachusetts' broad sense to mean any airborne substance whatsoever. EPA is also justified as an exercise of its discretionary discretion to adopt a reasonable construction of the statute. (3) EPA cannot claim that its interpretation is unreasonable because it would bring about an enormous and transformative expansion in EPA's regulatory authority without clear congressional authorization. (4) EPA is not incapable of categorically and categorically of its decision to apply BACT to greenhouse gases. (5) EPA need not, and do not, pass on the validity of all the limiting constructions EPA has given the term "air pollutant" throughout the Act, since EPA asserts newfound authority to regulate millions of small

2013_12-574

https://www.oyez.org/cases/2013/12-574

. This case asks us to decide whether a court in Nevada may exercise personal jurisdiction over a defendant on the basis that he knew his allegedly tortious conduct in Georgia would delay the return of funds to plaintiffs with connections to Nevada. Because the defendant had no other contacts with Nevada, and because a plaintiff’s con-tacts with the forum State cannot be “decisive in determining whether the defendant’s due process rights are violated,” Rush v. Savchuk, 444 U. S. 320, 332 (1980) , we hold that the court in Nevada may not exercise personal jurisdiction under these circumstances. I Petitioner Anthony Walden serves as a police officer for the city of Covington, Georgia. In August 2006, petitioner was working at the Atlanta Hartsfield-Jackson Airport as a deputized agent of the Drug Enforcement Administration (DEA). As part of a task force, petitioner conducted investigative stops and other law enforcement functions in support of the DEA’s airport drug interdiction program. On August 8, 2006, Transportation Security Administration agents searched respondents Gina Fiore and Keith Gipson and their carry-on bags at the San Juan airport in Puerto Rico. They found almost $97,000 in cash. Fiore explained to DEA agents in San Juan that she and Gipson had been gambling at a casino known as the El San Juan, and that they had residences in both California and Nevada (though they provided only California identification). After respondents were cleared for departure, a law enforcement official at the San Juan airport notified petitioner’s task force in Atlanta that respondents had boarded a plane for Atlanta, where they planned to catch a connecting flight to Las Vegas, Nevada. When respondents arrived in Atlanta, petitioner and another DEA agent approached them at the departure gate for their flight to Las Vegas. In response to petitioner’s questioning, Fiore explained that she and Gipson were professional gamblers. Respondents maintained that the cash they were carrying was their gambling “ ‘bank’ ” and winnings. App. 15, 24. After using a drug-sniffing dog to perform a sniff test, petitioner seized the cash.[1] Petitioner advised respondents that their funds would be returned if they later proved a legitimate source for the cash. Respondents then boarded their plane. After respondents departed, petitioner moved the cash to a secure location and the matter was forwarded to DEA headquarters. The next day, petitioner received a phone call from respondents’ attorney in Nevada seeking return of the funds. On two occasions over the next month, petitioner also received documentation from the attorney regarding the legitimacy of the funds. At some point after petitioner seized the cash, he helped draft an affidavit to show probable cause for forfeiture of the funds and forwarded that affidavit to a United States Attorney’s Office in Georgia.[2] According to respondents, the affidavit was false and misleading because petitioner misrepresented the encounter at the airport and omitted exculpatory information regarding the lack of drug evidence and the legitimate source of the funds. In the end, no forfeiture complaint was filed, and the DEA returned the funds to respondents in March 2007. Respondents filed suit against petitioner in the United States District Court for the District of Nevada, seeking money damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) . Respondents alleged that petitioner violated their Fourth Amendment rights by (1) seizing the cash without probable cause; (2) keeping the money after concluding it did not come from drug-related activity; (3) drafting and forwarding a probable cause affidavit to support a forfeiture action while knowing the affidavit contained false statements; (4) willfully seeking forfeiture while withholding exculpatory informa-tion; and (5) withholding that exculpatory information from the United States Attorney’s Office. The District Court granted petitioner’s motion to dismiss. Relying on this Court’s decision in Calder v. Jones, 465 U. S. 783 (1984) , the court determined that petitioner’s search of respondents and his seizure of the cash in Georgia did not establish a basis to exercise personal jurisdiction in Nevada. The court concluded that even if petitioner caused harm to respondents in Nevada while knowing they lived in Nevada, that fact alone did not confer jurisdiction. Because the court dismissed the complaint for lack of personal jurisdiction, it did not determine whether venue was proper. On appeal, a divided panel of the United States Court of Appeals for the Ninth Circuit reversed. The Court of Appeals assumed the District Court had correctly determined that petitioner’s search and seizure in Georgia could not support exercise of jurisdiction in Nevada. The court held, however, that the District Court could properly exercise jurisdiction over “the false probable cause affidavit aspect of the case.” 688 F. 3d 558, 577 (2011). According to the Court of Appeals, petitioner “expressly aimed” his submission of the allegedly false affidavit at Nevada by submitting the affidavit with knowledge that it would affect persons with a “significant connection” to Nevada.[3] Id., at 581. After determining that the delay in returning the funds to respondents caused them “foreseeable harm” in Nevada and that the exercise of personal jurisdiction over petitioner was otherwise reasonable, the court found the District Court’s exercise of personal jurisdiction to be proper.[4] Id., at 582, 585. The Ninth Circuit denied rehearing en banc, with eight judges, in two separate opinions, dissenting. Id., at 562, 568. We granted certiorari to decide whether due process permits a Nevada court to exercise jurisdiction over petitioner. 568 U. S. ___ (2013). We hold that it does not and therefore reverse.[5] II A “Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons.” Daimler AG v. Bauman, 571 U. S. ___, ___ (2014) (slip op., at 6). This is because a federal district court’s authority to assert personal jurisdiction in most cases is linked to service of process on a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Fed. Rule of Civ. Proc. 4(k)(1)(A). Here, Nevada has authorized its courts to exercise jurisdiction over persons “on any basis not inconsistent with . . . the Constitution of the United States.” Nev. Rev. Stat. §14.065 (2011). Thus, in order to determine whetherthe Federal District Court in this case was authorized to exercise jurisdiction over petitioner, we ask whether the exercise of jurisdiction “comports with the limits imposed by federal due process” on the State of Nevada. Daimler, supra, at ___ (slip op., at 6). B 1 The Due Process Clause of the Fourteenth Amendment constrains a State’s authority to bind a nonresidentdefendant to a judgment of its courts. World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 291 (1980) . Although a nonresident’s physical presence within the territorial jurisdiction of the court is not required, the nonresident generally must have “certain minimum contacts . . . such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940) ). This case addresses the “minimum contacts” necessary to create specific jurisdiction.[6] The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant “focuses on ‘the relationship among the defendant, the forum, and the litigation.’ ” Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 775 (1984) (quoting Shaffer v. Heitner, 433 U. S. 186, 204 (1977) ). For a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State. Two related aspects of this necessary relationship are relevant in this case. First, the relationship must arise out of contacts that the “defendant himself” creates with the forum State. Burger King Corp. v. Rudzewicz, 471 U. S. 462, 475 (1985) . Due process limits on the State’s adjudicative authority principally protect the liberty of the nonresident defendant—not the convenience of plaintiffs or third parties. See World-Wide Volkswagen Corp., supra, at 291–292. We have consistently rejected attempts to satisfy the defendant-focused “minimum contacts” inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State. See Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 417 (1984) (“[The] unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction”). We have thus rejected a plaintiff’s argument that a Florida court could exercise per-sonal jurisdiction over a trustee in Delaware based solely on the contacts of the trust’s settlor, who was domiciled in Florida and had executed powers of appointment there. Hanson v. Denckla, 357 U. S. 235 –254 (1958). We have likewise held that Oklahoma courts could not exercise personal jurisdiction over an automobile distributor that supplies New York, New Jersey, and Connecticut dealers based only on an automobile purchaser’s act of driving it on Oklahoma highways. World-Wide Volks-wagen Corp., supra, at 298. Put simply, however sig-nificant the plaintiff’s contacts with the forum may be, those contacts cannot be “decisive in determining whether the defendant’s due process rights are violated.” Rush, 444 U. S., at 332. Second, our “minimum contacts” analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there. See, e.g., International Shoe, supra, at 319 (Due process “does not contemplate that a state may make binding a judgment in personam against an individual . . . with which the state has no contacts, ties, or relations”); Hanson, supra, at 251 (“However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him”). Accordingly, we have upheld the assertion of jurisdiction over defendants who have purposefully “reach[ed] out beyond” their State and into another by, for example, entering a contractual relationship that “envisioned continuing and wide-reaching contacts” in the forum State, Burger King, supra, at 479–480, or by circulating magazines to “deliberately exploi[t]” a market in the forum State, Keeton, supra, at 781. And although physical presence in the forum is not a prerequisite to jurisdiction, Burger King, supra, at 476, physical entry into the State—either by the defendant in person or through an agent, goods, mail, or some other means—is certainly a relevant contact. See, e.g., Keeton, supra, at 773–774. But the plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant’s conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him. See Burger King, supra, at 478 (“If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot”); Kulko v. Superior Court of Cal., City and County of San Francisco, 436 U. S. 84, 93 (1978) (declining to “find personal jurisdiction in a State . . . merely because [the plaintiff in a child support action] was residing there”). To be sure, a defendant’s contacts with the forum State may be intertwined with his transactions or interactions with the plaintiff or other parties. But a defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction. See Rush, supra, at 332 (“Naturally, the parties’ relationships with each other may be significant in evaluating their ties to the forum. The requirements of International Shoe, however, must be met as to each defendant over whom a state court exercises jurisdiction”). Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the “random, fortuitous, or attenuated” contacts he makes by interacting with other persons affiliated with the State. Burger King, 471 U. S., at 475 (internal quotation marks omitted). 2 These same principles apply when intentional torts are involved. In that context, it is likewise insufficient to rely on a defendant’s “random, fortuitous, or attenuated contacts” or on the “unilateral activity” of a plaintiff. Ibid. (same). A forum State’s exercise of jurisdiction over an out-of-state intentional tortfeasor must be based on intentional conduct by the defendant that creates the necessary contacts with the forum. Calder v. Jones, 465 U. S. 783 , illustrates the application of these principles. In Calder, a California actress brought a libel suit in California state court against a reporter and an editor, both of whom worked for the National Enquirer at its headquarters in Florida. The plaintiff’s libel claims were based on an article written and edited by the defendants in Florida for publication in the National Enquirer, a national weekly newspaper with a California circulation of roughly 600,000. We held that California’s assertion of jurisdiction over the defendants was consistent with due process. Although we recognized that the defendants’ activities “focus[ed]” on the plaintiff, our jurisdictional inquiry “focuse[d] on ‘the relationship among the defendant, the forum, and the litigation.’ ” Id., at 788 (quoting Shaffer, 433 U. S., at 204). Specifically, we examined the various contacts the defendants had created with California (and not just with the plaintiff) by writing the allegedly libelous story. We found those forum contacts to be ample: The defendants relied on phone calls to “California sources” for the information in their article; they wrote the story about the plaintiff’s activities in California; they caused reputa-tional injury in California by writing an allegedly libelous article that was widely circulated in the State; and the “brunt” of that injury was suffered by the plaintiff in that State. 465 U. S., at 788–789. “In sum, California [wa]s the focal point both of the story and of the harm suffered.” Id., at 789. Jurisdiction over the defendants was “therefore proper in California based on the ‘effects’ of their Florida conduct in California.” Ibid. The crux of Calder was that the reputation-based “effects” of the alleged libel connected the defendants to California, not just to the plaintiff. The strength of that connection was largely a function of the nature of the libel tort. However scandalous a newspaper article might be, it can lead to a loss of reputation only if communicated to (and read and understood by) third persons. See Restatement (Second) of Torts §577, Comment b (1976); see also ibid. (“[R]eputation is the estimation in which one’s character is held by his neighbors or associates”). Accordingly, the reputational injury caused by the defendants’ story would not have occurred but for the fact that the defendants wrote an article for publication in California that was read by a large number of California citizens. Indeed, because publication to third persons is a necessary element of libel, see id., §558, the defendants’ intentional tort actually occurred in California. Keeton, 465 U. S., at 777 (“The tort of libel is generally held to occur wherever the offending material is circulated”). In this way, the “effects” caused by the defendants’ article—i.e., the injury to the plaintiff’s reputation in the estimation of the California public—connected the defendants’ conduct to California, not just to a plaintiff who lived there. That connection, combined with the various facts that gave the article a California focus, sufficed to authorize the California court’s exercise of jurisdiction.[7] III Applying the foregoing principles, we conclude that petitioner lacks the “minimal contacts” with Nevada that are a prerequisite to the exercise of jurisdiction over him. Hanson, 357 U. S., at 251. It is undisputed that no part of petitioner’s course of conduct occurred in Nevada. Petitioner approached, questioned, and searched respondents, and seized the cash at issue, in the Atlanta airport. It is alleged that petitioner later helped draft a “false probable cause affidavit” in Georgia and forwarded that affidavit to a United States Attorney’s Office in Georgia to support a potential action for forfeiture of the seized funds. 688 F. 3d, at 563. Petitioner never traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Nevada. In short, when viewed through the proper lens—whether the defendant’s actions connect him to the forum—petitioner formed no jurisdictionally relevant contacts with Nevada. The Court of Appeals reached a contrary conclusion by shifting the analytical focus from petitioner’s contacts with the forum to his contacts with respondents. See Rush, 444 U. S., at 332. Rather than assessing petitioner’s own contacts with Nevada, the Court of Appeals looked to petitioner’s knowledge of respondents’ “strong forum connections.” 688 F. 3d, at 577–579, 581. In the court’s view, that knowledge, combined with its conclusion that respondents suffered foreseeable harm in Nevada, satisfied the “minimum contacts” inquiry.[8] Id., at 582. This approach to the “minimum contacts” analysis impermissibly allows a plaintiff’s contacts with the defendant and forum to drive the jurisdictional analysis. Petitioner’s actions in Georgia did not create sufficient contacts with Nevada simply because he allegedly directed his conduct at plaintiffs whom he knew had Nevada connections. Such reasoning improperly attributes a plain-tiff’s forum connections to the defendant and makes those connections “decisive” in the jurisdictional analysis. See Rush, supra, at 332. It also obscures the reality that none of petitioner’s challenged conduct had anything to do with Nevada itself. Relying on Calder, respondents emphasize that they suffered the “injury” caused by petitioner’s allegedly tortious conduct (i.e., the delayed return of their gambling funds) while they were residing in the forum. Brief for Respondents 14. This emphasis is likewise misplaced. As previously noted, Calder made clear that mere injury to a forum resident is not a sufficient connection to the forum. Regardless of where a plaintiff lives or works, an injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State. The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful way. Respondents’ claimed injury does not evince a connection between petitioner and Nevada. Even if we consider the continuation of the seizure in Georgia to be a distinct injury, it is not the sort of effect that is tethered to Nevada in any meaningful way. Respondents (and only respondents) lacked access to their funds in Nevada not because anything independently occurred there, but because Nevada is where respondents chose to be at a time when they desired to use the funds seized by petitioner. Respondents would have experienced this same lack of access in California, Mississippi, or wherever else they might have traveled and found themselves wanting more money than they had. Unlike the broad publication of the forum-focused story in Calder, the effects of petitioner’s con-duct on respondents are not connected to the forum State in a way that makes those effects a proper basis forjurisdiction.[9] The Court of Appeals pointed to other possible contacts with Nevada, each ultimately unavailing. Respondents’ Nevada attorney contacted petitioner in Georgia, but that is precisely the sort of “unilateral activity” of a third party that “cannot satisfy the requirement of contact with the forum State.” Hanson, 357 U. S., at 253. Respondents allege that some of the cash seized in Georgia “originated” in Nevada, but that attenuated connection was not created by petitioner, and the cash was in Georgia, not Nevada, when petitioner seized it. Finally, the funds were eventually returned to respondents in Nevada, but petitioner had nothing to do with that return (indeed, it seems likely that it was respondents’ unilateral decision to have their funds sent to Nevada). * * * Well-established principles of personal jurisdiction are sufficient to decide this case. The proper focus of the “minimum contacts” inquiry in intentional-tort cases is “ ‘the relationship among the defendant, the forum, and the litigation.’ ” Calder, 465 U. S., at 788. And it is the defendant, not the plaintiff or third parties, who must create contacts with the forum State. In this case, the application of those principles is clear: Petitioner’s relevant conduct occurred entirely in Georgia, and the mere fact that his conduct affected plaintiffs with connectionsto the forum State does not suffice to authorize jurisdiction. We therefore reverse the judgment of the Court of Appeals. It is so ordered.Notes 1 Respondents allege that the sniff test was “at best, inconclusive,” and there is no indication in the pleadings that drugs or drug residue were ever found on or with the cash. App. 21. 2 The alleged affidavit is not in the record. Because this case comes to us at the motion-to-dismiss stage, we take respondents’ factual allegations as true, including their allegations regarding the existence and content of the affidavit. 3 The allegations in the complaint suggested to the Court of Appeals that petitioner “definitely knew, at some point the seizure but providing the alleged false probable cause affidavit, that [respondents] had a significant connection to Nevada.” 688 F. 3d, at 578. 4 Judge Ikuta dissented. In her view, the “false affidavit/forfeiture proceeding aspect” over which the majority found jurisdiction proper was not raised as a separate claim in the complaint, and she found it “doubtful that such a constitutional tort even exists.” ., at 593. After the court denied rehearing en banc, the majority explained in a postscript that it viewed the filing of the false affidavit, which effected a “continued seizure” of the funds, as a separate violation. at 588–589. Petitioner does not dispute that reading here. 5 We also granted certiorari on the question whether Nevada is a proper venue for the suit under . Because we resolve the case on jurisdictional grounds, we do not decide whether venue was proper in Nevada. 6 “Specific” or “case-linked” jurisdiction “depends on an ‘affiliatio[n] between the forum and the underlying controversy’ ” (, an “activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation”). v. , 564 U. S. ___, ___ (2011) (slip op., at 2). This is in contrast to “general” or “all purpose” jurisdiction, which permits a court to assert jurisdiction over a defendant based on a forum connection unrelated to the underlying suit (domicile). Respondents rely on specific jurisdiction only. 7 The defendants in argued that no contacts they had with California were sufficiently purposeful because their employer was responsible for circulation of the article. See v. , . We rejected that argument. Even though the defendants did not circulate the article themselves, they “expressly aimed” “their intentional, and allegedly tortious, actions” at California be-cause they knew the National Enquirer “ha[d] its largest circulation” in California, and that the article would “have a potentially devastating impact” there. , at 789–790 8 Respondents propose a substantially similar analysis. They suggest that “a defendant creates sufficient minimum contacts with a forum when he (1) intentionally targets (2) a known resident of the forum (3) for imposition of an injury (4) to be suffered by the plaintiff while she is residing in the forum state.” Brief for Respondents 26–27. 9 Respondents warn that if we decide petitioner lacks minimum contacts in this case, it will bring about unfairness in cases where intentional torts are committed via the Internet or other electronic means ( fraudulent access of financial accounts or “phishing” schemes). As an initial matter, we reiterate that the “minimum contacts” inquiry principally protects the liberty of the nonresident defendant, not the interests of the plaintiff. v.,444 U. S., 286, 291–292 (1980). In any event, this case does not present the very different questions whether and how a defendant’s virtual “presence” and conduct translate into “contacts” with a particular State. To the contrary, there is no question where the conduct giving rise to this litigation took place: Petitioner seized physical cash from respondents in the Atlanta airport, and he later drafted and forwarded an affidavit in Georgia. We leave questions about virtual contacts for another day.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus WALDEN v. FIORE et al. certiorari to the united states court of appeals for the ninth circuit No. 12–574. Argued November 4, 2013—Decided February 25, 2014 Petitioner Walden, a Georgia police officer working as a deputized Drug Enforcement Administration agent at a Georgia airport, searched respondents and seized a large amount of cash. Respondents allege that after they returned to their Nevada residence, petitioner helped draft a false probable cause affidavit in support of the funds’ forfeiture and forwarded it to a United States Attorney’s Office in Georgia. In the end, no forfeiture complaint was filed, and respondents’ funds were returned. Respondents filed a tort suit against petitioner in Federal District Court in Nevada. The District Court dismissed the suit, finding that the Georgia search and seizure did not establish a basis to exercise personal jurisdiction in Nevada. The Ninth Circuit reversed, holding that the District Court could properly exercise jurisdiction because petitioner had submitted the false probable cause affidavit with the knowledge that it would affect persons with significant Nevada connections. Held: The District Court lacked personal jurisdiction over petitioner. . (a) The Fourteenth Amendment’s Due Process Clause constrains a State’s authority to bind a nonresident defendant to a judgment of its courts, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, and requires that the nonresident have “certain minimum contacts” with the forum State, International Shoe Co. v. Washington, 326 U.S. 310, 316. The inquiry into the “minimum contacts” necessary to create specific jurisdiction focuses “on the relationship among the defendant, the forum, and the litigation.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775. For a State to exercise jurisdiction consistent with due process, that relationship must arise out of contacts that the “defendant himself” creates with the forum, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, and must be analyzed with regard to the defendant’s contacts with the forum itself, not with persons residing there, see, e.g., International Shoe, supra, at 319. The plaintiff cannot be the only link between the defendant and the forum. These same principles apply when intentional torts are involved. See Calder v. Jones, 465 U.S. 783, 788–789. . (b) Petitioner lacks the “minimal contacts” with Nevada that are a prerequisite to the exercise of jurisdiction over him. No part of petitioner’s course of conduct occurred in Nevada, and he formed no jurisdictionally relevant contacts with that forum. The Ninth Circuit reached its contrary conclusion by improperly shifting the analytical focus from petitioner’s contacts with the forum to his contacts with respondents, obscuring the reality that none of petitioner’s challenged conduct had anything to do with Nevada itself. Respondents emphasize that they suffered the “injury” caused by the delayed return of their funds while residing in Nevada, but Calder made clear that mere injury to a forum resident is not a sufficient connection to the forum. The proper question is whether the defendant’s conduct connects him to the forum in a meaningful way: Here, respondents’ claimed injury does not evince such a connection. The injury occurred in Nevada simply because that is where respondents chose to be when they desired to use the seized funds. Other possible contacts noted by the Ninth Circuit—that respondents’ Nevada attorney contacted petitioner in Georgia, that cash seized in Georgia originated in Nevada, and that funds were returned to respondents in Nevada—are ultimately unavailing. . 688 F.3d 558, reversed. Thomas, J., delivered the opinion for a unanimous Court.

Petitioner, a Georgia police officer, was working at the Atlanta Hartsfield-Jackson Airport as a deputized agent of the Drug Enforcement Administration (DEA). As part of a task force, he conducted investigative stops and other law enforcement functions in support of the DEA drug interdiction program. When respondents arrived at the airport, petitioner, who advised them that their funds would be returned if they proved a legitimate source for the cash, moved the cash to a secure location and the matter was forwarded to DEA headquarters. The next day, petitioner received a phone call from respondents' attorney in Nevada seeking return of the funds, and at some point, he helped draft and forward a probable cause affidavit to support a forfeiture action while knowing the affidavit contained false statements, willfully seeking forfeiture while withholding exculpatory informa-tion, and withholding that information from the United States Attorney's Office. Respondents filed suit against petitioner in Federal District Court, alleging that he violated their Fourth Amendment rights by (1) seizing the cash without probable cause; (2) keeping the money after concluding it did not come from drug-related activity; (3) drafting and forwarding the affidavit while knowing that the affidavit containing false statements; (4) willfully seeking forfeitures while withholding such an affidavit; and (5) withholding that affidavit from the Government. The District Court granted petitioner's motion to dismiss on the ground that the search of respondents and his seizure of the cash in Georgia did not establish a basis for jurisdiction in Nevada alone. The Court of Appeals reversed, holding that the District Court could not exercise jurisdiction over petitioner properly. Held: Due process does not permit Nevada courts to exercise personal jurisdiction over a Nevada defendant on the basis that he knew his allegedly tortious conduct in Georgia would delay the return of funds to plaintiffs with connections to Nevada. Because the defendant had no other contacts with Nevada, and because a plaintiff's con-tacts with the forum State cannot be decisive in determining whether the defendant's due process rights are violated, the Nevada court in Nevada may not exercise such jurisdiction under these circumstances. . (a) The Due Process Clause of the Fourteenth Amendment constrains a State's authority to bind a nonresidentdefendant to a judgment of its courts, but, as here, the nonresident generally must have minimum contacts such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the random, fortuitous, or attenuated contacts he makes by interacting with other persons affiliated with that State. It is the defendant, not the plaintiff or third parties, who must create contacts with the forum State. Calder v. Jones, 465 U. S. 770, 775. The proper focus of the minimum contacts inquiry in intentional-tort cases is the relationship among the defendant (the forum, and the litigation) and the defendant. In this case, the application of these principles is clear: Petitioner's relevant conduct occurred entirely in Georgia, and the mere fact that his conduct affected plaintiffs with connectionsto the forum State does not suffice to authorize jurisdiction. To the contrary, there is no question where the conduct giving rise to this litigation took place. Petitioner seized physical cash from respondents in the Atlanta airport, and he later drafted and forwarded an affidavit in Georgia. When viewed through the proper lens --whether the defendant did or did not connect him to the forum --petitioner formed no jurisdictionally relevant contacts. Rather, the court looked to petitioner's knowledge of respondents' strong forum connections, which, together with its conclusion that respondents suffered foreseeable harm in Nevada, satisfied theminimum contacts inquiry. This approach allows the court to drive the plaintiff-focused inquiry impermissibly to Nevada, but obscures the jurisdictional attributes of the defendant who allegedly had connections with Nevada by obscuring the reality of the forum connection itself. Moreover, the proper question is not where the plaintiff experienced a particular injury or effect, but whether his conduct connects him to the forum in a meaningful way. Respondents' claimed injury does not evince a connection between petitioner and Nevada, even though they lacked access to their funds in Nevada not because anything independently occurred there, but because Nevada is where respondents chose to be at a time when they desired to use the funds seized by petitioner. Nor does the alleged affidavit in question in the Georgia court present the very different questions whether and how a defendant's virtual presence and conduct translate into meaningful contacts with a particular State, since no part of petitioner's course of conduct occurred in Nevada... 688 F. 3d, reversed. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined.

2013_12-794

https://www.oyez.org/cases/2013/12-794

. Respondent brutally raped, slashed with a box cutter, and drowned a 16-year-old high-school student. After pleading guilty to murder, rape, and kidnaping, he was sentenced to death. The Kentucky Supreme Court affirmed the sentence, and we denied certiorari. Ten years later, the Court of Appeals for the Sixth Circuit granted respondent’s petition for a writ of habeas corpus on his Fifth Amendment claim. In so doing, it disregarded the limitations of 28 U. S. C. §2254(d)—a provision of law that some federal judges find too confining, but that all federal judges must obey. We reverse. I On the evening of January 25, 1997, Sarah Hansen drove to a convenience store to rent a movie. When she failed to return home several hours later, her family called the police. Officers eventually found the vehicle Hansen had been driving a short distance from the convenience store. They followed a 400- to 500-foot trail of blood from the van to a nearby lake, where Hansen’s unclothed, dead body was found floating in the water. Hansen’s “throat had been slashed twice with each cut approximately 3.5 to 4 inches long,” and “[h]er windpipe was totally severed.” Woodall v. Commonwealth, 63 S. W. 3d 104, 114 (Ky. 2002). Authorities questioned respondent when they learned that he had been in the convenience store on the night of the murder. Respondent gave conflicting statements regarding his whereabouts that evening. Further investigation revealed that respondent’s “fingerprints were on the van the victim was driving,” “[b]lood was found on [respondent’s] front door,” “[b]lood on his clothing and sweatshirt was consistent with the blood of the victim,” and “DNA on . . . vaginal swabs” taken from the victim “was consistent with” respondent’s. Ibid. Faced with overwhelming evidence of his guilt, respondent pleaded guilty to capital murder. He also pleaded guilty to capital kidnaping and first-degree rape, the statutory aggravating circumstance for the murder. See App. 78; Ky. Rev. Stat. Ann. §532.025(2)(a) (West Supp. 2012). At the ensuing penalty-phase trial, respondent called character witnesses but declined to testify himself. Defense counsel asked the trial judge to instruct the jury that “[a] defendant is not compelled to testify and the fact that the defendant did not testify should not prejudice him in any way.” App. 31. The trial judge denied the request, and the Kentucky Supreme Court affirmed that denial. Woodall v. Commonwealth, supra, at 115. While recog-nizing that the Fifth Amendment requires a no-adverse-inference instruction to protect a nontestifying defendant at the guilt phase, see Carter v. Kentucky, 450 U. S. 288 (1981) , the court held that Carter and our subsequent cases did not require such an instruction here. Woodall v. Commonwealth, supra, at 115. We denied respondent’s petition for a writ of certiorari from that direct appeal. Woodall v. Kentucky, 537 U. S. 835 (2002) . In 2006, respondent filed this petition for habeas corpus in Federal District Court. The District Court granted relief, holding, as relevant here, that the trial court’s refusal to issue a no-adverse-inference instruction at the penalty phase violated respondent’s Fifth Amendment privilege against self-incrimination. Woodall v. Simpson, No. 5:06CV–P216–R (WD Ky., Feb. 24, 2009), App. to Pet. for Cert. 58a–61a, 2009 WL 464939, *12. The Court of Appeals affirmed and ordered Kentucky to either resentence respondent within 180 days or release him. Woodall v. Simpson, 685 F. 3d 574, 581 (CA6 2012).[1] Judge Cook dissented. We granted certiorari. 570 U. S. ___ (2013). II A Section 2254(d) of Title 28 provides that “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” “This standard,” we recently reminded the Sixth Circuit, “is ‘difficult to meet.’ ” Metrish v. Lancaster, 569 U. S. ___, ___ (2013) (slip op., at 4–5). “ ‘[C]learly established Federal law’ ” for purposes of §2254(d)(1) includes only “ ‘the holdings, as opposed to the dicta, of this Court’s decisions.’ ” Howes v. Fields, 565 U. S. ___, ___ (2012) (slip op., at 4) (quoting Williams v. Taylor, 529 U. S. 362, 412 (2000) ). And an “unreasonable application of” those holdings must be “ ‘objectively unrea-sonable,’ ” not merely wrong; even “clear error” will not suffice. Lockyer v. Andrade, 538 U. S. 63 –76 (2003). Rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13). Both the Kentucky Supreme Court and the Court of Appeals identified as the relevant precedents in this area our decisions in Carter, Estelle v. Smith, 451 U. S. 454 (1981) , and Mitchell v. United States, 526 U. S. 314 (1999) . Carter held that a no-adverse-inference instruction is required at the guilt phase. 450 U. S., at 294–295, 300. Estelle concerned the introduction at the penalty phase of the results of an involuntary, un-Mirandized pretrial psychiatric examination. 451 U. S., at 456–457, and n. 1; id., at 461. And Mitchell disapproved a trial judge’s drawing of an adverse inference from the defendant’s silence at sentencing “with regard to factual determinations respecting the circumstances and details of the crime.” 526 U. S., at 327–330. It is clear that the Kentucky Supreme Court’s conclusion is not “contrary to” the actual holding of any of these cases. 28 U. S. C. §2254(d)(1). The Court of Appeals held, however, that the “Kentucky Supreme Court’s denial of this constitutional claim was an unreasonable application of” those cases. 685 F. 3d, at 579. In its view, “reading Carter, Estelle, and Mitchell together, the only reasonable conclusion is that” a no-adverse-inference instruction was required at the penalty phase. Ibid.[2] We need not decide here, and express no view on, whether the conclusion that a no-adverse-inference instruction was required would be correct in a case not reviewed through the lens of §2254(d)(1). For we are satisfied that the issue was, at a minimum, not “beyond any possibility for fairminded disagreement.” Harrington, supra, at ___ (slip op., at 13). We have, it is true, held that the privilege against self-incrimination applies to the penalty phase. See Estelle, supra, at 463; Mitchell, supra, at 328–329. But it is not uncommon for a constitutional rule to apply somewhat differently at the penalty phase than it does at the guilt phase. See, e.g., Bobby v. Mitts, 563 U. S. ___, ___ (2011) (per curiam) (slip op., at 4). We have “never directly held that Carter applies at a sentencing phase where the Fifth Amendment interests of the defendant are different.” United States v. Whitten, 623 F. 3d 125, 131–132, n. 4 (CA2 2010) (Livingston, J., dissenting from denial of rehearing en banc). Indeed, Mitchell itself leaves open the possibility that some inferences might permissibly be drawn from a defendant’s penalty-phase silence. In that case, the District Judge had actually drawn from the defendant’s silence an adverse inference about the drug quantity attributable to the defendant. See 526 U. S., at 317–319. We held that this ran afoul of the defendant’s “right to remain silent at sentencing.” Id., at 325, 327–328 (citing Griffin v. California, 380 U. S. 609, 614 (1965) ). But we framed our holding narrowly, in terms implying that it was limited to inferences pertaining to the facts of the crime: “We decline to adopt an exception for the sentencing phase of a crimi-nal case with regard to factual determinations respecting the circumstances and details of the crime.” Mitchell, 526 U. S., at 328 (emphasis added). “The Government retains,” we said, “the burden of proving facts relevant to the crime . . . and cannot enlist the defendant in this process at the expense of the self-incrimination privilege.” Id., at 330 (emphasis added). And Mitchell included an express reservation of direct relevance here: “Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in §3E1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view on it.” Ibid.[3] Mitchell’s reservation is relevant here for two reasons. First, if Mitchell suggests that some actual inferences might be permissible at the penalty phase, it certainly cannot be read to require a blanket no-adverse-inference instruction at every penalty-phase trial. And it was a blanket instruction that was requested and denied in this case; respondent’s requested instruction would have informed the jury that “[a] defendant is not compelled to testify and the fact that the defendant did not testify should not prejudice him in any way.” App. 31 (emphasis added). Counsel for respondent conceded at oral argument that remorse was at issue during the penalty-phase trial, see Tr. of Oral Arg. 39; see also Brief for Respondent 18, yet the proposed instruction would have precluded the jury from considering respondent’s silence as indicative of his lack of remorse. Indeed, the trial judge declined to give the no-adverse-inference instruction precisely because he was “aware of no case law that precludes the jury from considering the defendant’s lack of expression of remorse . . . in sentencing.” App. 36. This alone suffices to establish that the Kentucky Supreme Court’s conclusion was not “objectively unreasonable.” Andrade, 538 U. S., at 76. Second, regardless of the scope of respondent’s proposed instruction, any inferences that could have been drawn from respondent’s silence would arguably fall within the class of inferences as to which Mitchell leaves the door open. Respondent pleaded guilty to all of the charges he faced, including the applicable aggravating circumstances. Thus, Kentucky could not have shifted to respondent its “burden of proving facts relevant to the crime,” 526 U. S., at 330: Respondent’s own admissions had already established every relevant fact on which Kentucky bore the burden of proof. There are reasonable arguments that the logic of Mitchell does not apply to such cases. See, e.g., United States v. Ronquillo, 508 F. 3d 744, 749 (CA5 2007) (“Mitchell is inapplicable to the sentencing decision in this case because ‘the facts of the offense’ were based entirely on Ronquillo’s admissions, not on any adverse inference . . . . Ronquillo, unlike the defendant in Mitchell, admitted all the predicate facts of his offenses”). The dissent insists that Mitchell is irrelevant because it merely declined to create an exception to the “normal rule,” supposedly established by Estelle, “that a defendant is entitled to a requested no-adverse-inference instruction” at sentencing. Post, at 5 (opinion of Breyer, J.). That argument disregards perfectly reasonable interpretations of Estelle and Mitchell and hence contravenes §2254(d)’s deferential standard of review. Estelle did not involve an adverse inference based on the defendant’s silence or a corresponding jury instruction. See 451 U. S., at 461–469. Thus, whatever Estelle said about the Fifth Amendment, its holding[4]—the only aspect of the decision relevant here—does not “requir[e]” the categorical rule the dissent ascribes to it. Carey v. Musladin, 549 U. S. 70, 76 (2006) . Likewise, fairminded jurists could conclude that Mitchell’s reservation regarding remorse and acceptance of responsibility would have served no meaningful purpose if Estelle had created an across-the-board rule against adverse inferences; we are, after all, hardly in the habit of reserving “separate question[s],” Mitchell, supra, at 330, that have already been definitively answered. In these circumstances, where the “ ‘precise contours’ ” of the right remain “ ‘unclear,’ ” state courts enjoy “broad discretion” in their adjudication of a prisoner’s claims. Lockyer, 538 U. S., at 76 (quoting Harmelin v. Michigan, 501 U. S. 957, 998 (1991) (Kennedy, J., concurring in part and in judgment)). B In arguing for a contrary result, respondent leans heavily on the notion that a state-court “ ‘determination may be set aside . . . if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled.’ ” Brief for Respondent 21 (quoting Ramdass v. Angelone, 530 U. S. 156, 166 (2000) (plurality opinion)). The Court of Appeals and District Court relied on the same proposition in sustaining respondent’s Fifth Amendment claim. See 685 F. 3d, at 579; App. to Pet. for Cert. 37a–39a, 2009 WL 464939, *4. The unreasonable-refusal-to-extend concept originated in a Fourth Circuit opinion we discussed at length in Williams, our first in-depth analysis of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 529 U. S., at 407–409 (citing Green v. French, 143 F. 3d 865, 869–870 (1998)). We described the Fourth Circuit’s interpretation of §2254(d)(1)’s “unreasonable application” clause as “generally correct,” 529 U. S., at 407, and approved its conclusion that “a state-court decision involves an unreasonable application of this Court’s precedent if the state court identifies the correct governing legal rule . . . but unreasonably applies it to the facts of the particular state prisoner’s case,” id., at 407–408 (citing Green, supra, at 869–870). But we took no position on the Fourth Circuit’s further conclusion that a state court commits AEDPA error if it “unreasonably refuse[s] to extend a legal principle to a new context where it should apply.” 529 U. S., at 408–409 (citing Green, supra, at 869–870). We chose not “to decide how such ‘extension of legal principle’ cases should be treated under §2254(d)(1)” because the Fourth Circuit’s proposed rule for resolving them presented several “problems of precision.” 529 U. S., at 408–409. Two months later, a plurality paraphrased and applied the unreasonable-refusal-to-extend concept in Ramdass. See 530 U. S., at 166–170. It did not, however, grant the habeas petitioner relief on that basis, finding that there was no unreasonable refusal to extend. Moreover, Justice O’Connor, whose vote was necessary to form a majority, cited Williams and made no mention of the unreasonable-refusal-to-extend concept in her separate opinion concurring in the judgment. See 530 U. S., at 178–181. Ramdass therefore did not alter the interpretation of §2254(d)(1) set forth in Williams. Aside from one opinion criticizing the unreasonable-refusal-to-extend doctrine, see Yarborough v. Alvarado, 541 U. S. 652, 666 (2004) , we have not revisited the issue since Williams and Ramdass. During that same 14-year stretch, however, we have repeatedly restated our “hold[ing]” in Williams, supra, at 409, that a state-court decision is an unreasonable application of our clearly established precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner’s case, see, e.g., Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 10); Rompilla v. Beard, 545 U. S. 374, 380 (2005) ; Yarborough, supra, at 663; Penry v. Johnson, 532 U. S. 782, 792 (2001) . Thus, this Court has never adopted the unreasonable-refusal-to-extend rule on which respondent relies. It has not been so much as endorsed in a majority opinion, let alone relied on as a basis for granting habeas relief. To the extent the unreasonable-refusal-to-extend rule differs from the one embraced in Williams and reiterated many times since, we reject it. Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court’s precedent; it does not require state courts to extend that precedent or license federal courtsto treat the failure to do so as error. See Scheidegger, Ha-beas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888, 949 (1998). Thus, “if a habeas court must extend a rationale before it can apply to the facts at hand,” then by definition the rationale was not “clearly established at the time of the state-court decision.” Yarborough, 541 U. S., at 666. AEDPA’s carefully constructed framework “would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law.” Ibid. This is not to say that §2254(d)(1) requires an “ ‘identical factual pattern before a legal rule must be applied.’ ” Panetti v. Quarterman, 551 U. S. 930, 953 (2007) . To the contrary, state courts must reasonably apply the rules “squarely established” by this Court’s holdings to the facts of each case. Knowles v. Mirzayance, 556 U. S. 111, 122 (2009) . “[T]he difference between applying a rule and extending it is not always clear,” but “[c]ertain principles are fundamental enough that when new factual permu-tations arise, the necessity to apply the earlier rule willbe beyond doubt.” Yarborough, supra, at 666. The crit-ical point is that relief is available under §2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no “fairminded disagreement” on the question, Harrington, 562 U. S., at ___ (slip op., at 13). Perhaps the logical next step from Carter, Estelle, and Mitchell would be to hold that the Fifth Amendment requires a penalty-phase no-adverse-inference instruction in a case like this one; perhaps not. Either way, we have not yet taken that step, and there are reasonable arguments on both sides—which is all Kentucky needs to prevail in this AEDPA case. The appropriate time to consider the question as a matter of first impression would be on direct review, not in a habeas case governed by §2254(d)(1). * * * Because the Kentucky Supreme Court’s rejection of respondent’s Fifth Amendment claim was not objectively unreasonable, the Sixth Circuit erred in granting the writ. We therefore need not reach its further holding that the trial court’s putative error was not harmless. 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.Notes 1 The Court of Appeals did not reach the alternative ground for the District Court’s decision: respondent’s claim based on v. , . See 685 F. 3d, at 577–578. That claim is not before us here. 2 The Court of Appeals also based its conclusion that respondent “was entitled to receive a no adverse inference instruction” on one of its own cases, v. , 751 F. 2d 858, 863–864 (CA6 1985). 685 F. 3d, at 579 (internal quotation marks omitted). That was improper. As we cautioned the Sixth Circuit two Terms ago, a lower court may not “consul[t] its own precedents, rather than those of this Court, in assessing” a habeas claim governed by §2254. v. , 567 U. S. ___, ___ (2012) () (slip op., at 12). 3 The Courts of Appeals have recognized that left this unresolved; their diverging approaches to the question illustrate the possibility of fairminded disagreement. Compare v. , 597 F. 3d 608, 629–630 (CA4 2010) (direct appeal) (noting that “reserved the question of whether silence bears upon lack of remorse,” but reasoning that “and together suggest that the may well prohibit considering a defendant’s silence regarding the nonstatutory aggravating factor of lack of remorse”), with v. , 546 F. 3d 828, 832 (CA7 2008) (habeas) (while the right to remain silent persists at sentencing, “silence can be consistent not only with exercising one’s constitutional right, but also with a lack of remorse,” which “is properly considered at sentencing” (citing , 526 U. S., at 326–327)); v. , 451 F. 3d 598, 605, n. 3 (CA10 2006) (habeas) (“[T]he circuit courts have readily confined to its stated holding, and have allowed sentencing courts to rely on, or draw inferences from, a defendant’s exercise of his rights for purposes other than determining the facts of the offense of conviction”). 4 The dissent says “held that ‘so far as the protection of the is concerned,’ it could ‘discern no basis to distinguish between the guilt and penalty phases of a defendant’s ‘capital murder trial.’ ” at 2 (quoting , 451 U. S., at 462–463). Of course, it did not “hold” that. Rather, it held that the defendant’s “rights were abridged by the State’s introduction of ” a pretrial psychiatric evaluation that was administered without the preliminary warning required by v. , . 451 U. S., at 473. In any event, even ’s dictum did not assume an entitlement to a blanket no-adverse-inference instruction. The quoted language is reasonably read as referring to theof the privilege at sentencing rather than thepreciseofthat privilege when applied in the sentencing context. Indeed, it appears in a passage responding to the State’s argument that the defendant “was not entitled to the protection of the ” in the first place. at 462.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus WHITE, WARDEN v. WOODALL certiorari to the united states court of appeals for the sixth circuit No. 12–794. Argued December 11, 2013—Decided April 23, 2014 Respondent pleaded guilty to capital murder, capital kidnaping, and first-degree rape, the statutory aggravating circumstance for the murder. He was sentenced to death after the trial court denied defense counsel’s request to instruct the jury not to draw any adverse inference from respondent’s decision not to testify at the penalty phase. The Kentucky Supreme Court affirmed, finding that the Fifth Amendment’s requirement of a no-adverse-inference instruction to protect a nontestifying defendant at the guilt phase, see Carter v. Kentucky, 450 U.S. 288, is not required at the penalty phase. Subsequently, the Federal District Court granted respondent habeas relief, holding that the trial court’s refusal to give the requested instruction violated respondent’s privilege against self-incrimination. The Sixth Circuit affirmed. Held: Because the Kentucky Supreme Court’s rejection of respondent’s Fifth Amendment claim was not objectively unreasonable, the Sixth Circuit erred in granting the writ. . (a) The difficult-to-meet standard of 28 U. S. C. §2254(d) permits a court to grant federal habeas relief on a claim already “adjudicated on the merits in State court” only if that adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by [this] Court.” “ ‘[C]learly established Federal law’ ” includes only “ ‘the holdings” of the Court’s decisions,’ ” Howes v. Fields, 565 U. S. ___, ___; and an “unreasonable application of” those holdings must be “ ‘objectively unreasonable,’ ” Lockyer v. Andrade, 538 U.S. 63, 75–76. The state-court ruling must rest on “an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U. S. ___, ___. Here, the Kentucky Supreme Court’s conclusion was not “contrary to” the Court’s holdings in Carter, supra, which required a no-adverse-inference instruction at the guilt phase; in Estelle v. Smith, 451 U.S. 454, which concerned the introduction at the penalty phase of the results of an involuntary, un-Mirandized pretrial psychiatric examination; or in Mitchell v. United States, 526 U.S. 314, 327–330, which disapproved a trial judge’s drawing of an adverse inference from the defendant’s silence at sentencing “with regard to factual determinations respecting the circumstances and details of the crime.” Nor was the Kentucky Supreme Court’s conclusion an unreasonable application of the holdings in those cases. This Court need not decide whether a no-adverse-inference instruction is required in these circumstances, for the issue before the Kentucky Supreme Court was, at a minimum, not “beyond any possibility for fairminded disagreement,” Harrington, supra, at ___. Mitchell in particular leaves open the possibility that some inferences might permissibly be drawn from a defendant’s penalty-phase silence. Thus, it cannot be read to require the type of blanket no-adverse-inference instruction requested and denied here. Moreover, because respondent’s own admissions of guilt had established every relevant fact on which Kentucky bore the burden of proof, Mitchell’s narrow holding, which implied that it was limited to inferences pertaining to the facts of the crime, does not apply. . (b) Respondent contends that the state court was unreasonable in refusing to extend a governing legal principle to a context in which it should have controlled, but this Court has never adopted such a rule. Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court’s precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error. The appropriate time to consider, as a matter of first impression, whether Carter, Estelle, and Mitchell require a penalty-phase no-adverse-inference instruction would be on direct review, not in a habeas case governed by §2254(d). . 685 F.3d 574, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Alito, and Kagan, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg and Sotomayor, JJ., joined.

Faced with overwhelming evidence of his guilt, respondent was convicted in a Kentucky state court of capital murder. He also pleaded guilty to capital kidnaping and first-degree rape, the statutory aggravating circumstances for the murder. At the ensuing penalty-phase trial, respondent called character witnesses but declined to testify himself, and defense counsel asked the trial judge to instruct the jury that a defendant is not compelled to testify and that the fact that he did not testify should not prejudice him in any way. The trial judge denied the request, and the Kentucky Supreme Court affirmed. While recog-nizing that the Fifth Amendment requires a no-adverse-inference instruction to protect a nontestifying defendant at the guilt phase, the court held that Carter v. Kentucky, 450 U. S. 288 (1981), and subsequent cases did not require such an instruction here. Respondent then filed a petition for a writ of habeas corpus in Federal District Court, which granted relief, holding, as relevant here, that the trial court's refusal to issue the instruction at the penalty phase violated respondent's Fifth Amendment privilege against self-incrimination. The Court of Appeals affirmed and ordered Kentucky to either resentence respondent within 180 days or release him. In so doing, it disregarded the limitations of 28 U.S. C. §2254(d), a provision of law that some federal judges find too confining, but that all federal judges must obey. Held: The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. ;. 685 F. 3d 581, reversed and remanded. PER CURIAM. (a) The Fifth Amendment does not apply to the penalty or the guilt phases of a criminal trial. Carter, Estelle v. Smith,, and Mitchell v. United States,, distinguished. . (b) A state-court decision is an unreasonable application of this Court's clearly established precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case, see, e.g., Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 4), and Mitchell included an express reservation of direct relevance here: the rationale was not clearly established at the time of the state court decision. Here, the quoted language is reasonably read as referring to theof the privilege at sentencing, rather than thepreciseofthat privilege when applied in the sentencing context. Moreover, regardless of the scope of respondent's proposed instruction, any inferences that could have drawn from respondent's silence would arguably fall within the class of inferences as to which Mitchell leaves the door open. Thus, Kentucky could not have shifted to respondent its burden of proving facts relevant to the crime, since its own admissions had already established every relevant fact on which Kentucky bore the burden of proof. Ramdass v. Alvarado, 751 F. 2d 858, 863-864 (CA6 1985), did not alter the interpretation set forth in Williams, supra, at 409. Pp. 573. 692 F.3d 585 (CA 6 1990), and 570 F.2d 570, 570, 681 (CA 5 1990), reversed. REHNQUIST, C.J., filed a dissenting opinion, in which WHITE and O'CONNOR, JJ., joined, post, p..

2013_13-115

https://www.oyez.org/cases/2013/13-115

. This case concerns a charge that two Secret Service agents, in carrying out their responsibility to protect the President, engaged in unconstitutional viewpoint-based discrimination. The episode in suit occurred in Jacksonville, Oregon, on the evening of October 14, 2004. President George W. Bush, campaigning in the area for a second term, was scheduled to spend the evening at a cottage in Jacksonville. With permission from local law enforcement officials, two groups assembled on opposite sides of the street on which the President’s motorcade was to travel to reach the cottage. One group supported the President, the other opposed him. The President made a last-minute decision to stop in town for dinner before completing the drive to the cottage. His motorcade therefore turned from the planned route and proceeded to the outdoor patio dining area of the Jacksonville Inn’s restaurant. Learning of the route change, the protesters moved down the sidewalk to the area in front of the Inn. The President’s supporters remained across the street and about a half block away from the Inn. At the direction of the Secret Service agents, state and local police cleared the block on which the Inn was located and moved the protesters some two blocks away to a street beyond handgun or explosive reach of the President. The move placed the protesters a block farther away from the Inn than the supporters. Officials are sheltered from suit, under a doctrine known as qualified immunity, when their conduct “does not violate clearly established . . . constitutional rights” a reasonable official, similarly situated, would have comprehended. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982) . The First Amendment, our precedent makes plain, disfavors viewpoint-based discrimination. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828 (1995) . But safeguarding the President is also of overwhelming importance in our constitutional system. See Watts v. United States, 394 U. S. 705, 707 (1969) (per curiam). Faced with the President’s sudden decision to stop for dinner, the Secret Service agents had to cope with a security situation not earlier anticipated. No decision of this Court so much as hinted that their on-the-spot action was unlawful because they failed to keep the protesters and supporters, throughout the episode, equidistant from the President. The United States Court of Appeals for the Ninth Circuit ruled otherwise. It found dispositive of the agents’ motion to dismiss “the considerable disparity in the distance each group was allowed to stand from the Presiden[t].” Moss v. United States Secret Serv., 711 F. 3d 941, 946 (2013). Because no “clearly established law” so controlled the agents’ response to the motorcade’s detour, we reverse the Ninth Circuit’s judgment. I A On October 14, 2004, after a nearby campaign appear-ance, President George W. Bush was scheduled to spend the night at a cottage in Jacksonville, Oregon. Anticipating the visit, a group of individuals, including respondents (the protesters), organized a demonstration to express their opposition to the President and his policies. At around 6:00 p.m. on the evening the President’s motorcade was expected to pass through the town, between 200 and 300 protesters gathered in Jacksonville, on California Street between Third and Fourth Streets. See infra, at 4 (map depicting the relevant area in Jacksonville). The gathering had been precleared with local law enforcement authorities. On the opposite side of Third Street, a similarly sized group of individuals (the supporters) assembled to show their support for the President. If, as planned, the motorcade had traveled down Third Street to reach the cottage, with no stops along the way, the protesters and supporters would have had equal access to the President throughout in delivering their respective messages. This situation was unsettled when President Bush made a spur-of-the-moment decision to stop for dinner at the Jacksonville Inn before proceeding to the cottage. The Inn stands on the north side of California Street, on the block where the protesters had assembled. Learning of the President’s change in plans, the protesters moved along the block to face the Inn. The respective positions of the protesters and supporters at the time the President arrived at the Inn are shown on the following map, which the protesters attached as an exhibit to their complaint:[1] As the map indicates, the protesters massed on the sidewalk directly in front of the Inn, while the supporters remained assembled on the block west of Third Street, some distance from the Inn. The map also shows an alley running along the east side of the Inn (the California Street alley) leading to an outdoor patio used by the Inn’s restaurant as a dining area. A six-foot high wooden fence surrounded the patio. At the location where the President’s supporters gathered, a large two-story building, the U. S. Hotel, extended north around the corner of California and Third Streets. That structure blocked sight of, and weapons access to, the patio from points on California Street west of the Inn. Petitioners are two Secret Service agents (the agents) responsible for the President’s security during the Jacksonville visit. Shortly after 7:00 p.m. on the evening in question, the agents enlisted the aid of local police officers to secure the area for the President’s unexpected stop at the Inn. Following the agents’ instructions, the local officers first cleared the alley running from Third Street to the patio (the Third Street alley), which the President’s motorcade would use to access the Inn. The officers then cleared Third Street north of California Street, as well as the California Street alley. At around 7:15 p.m., the President arrived at the Inn. As the motorcade entered the Third Street alley, both sets of demonstrators were equally within the President’s sight and hearing. When the President reached the outdoor patio dining area, the protesters stood on the sidewalk directly in front of the California Street alley, exhibiting signs and chanting slogans critical of the President and his policies. In view of the short distance between California Street and the patio, the protesters no longer contest that they were then within weapons range of the President. See Tr. of Oral Arg. 3–4, 35, 39–40; Brief for Petitioners 44. Approximately 15 minutes later, the agents directed the officers to clear the protesters from the block in front of the Inn and move them to the east side of Fourth Street. From their new location, the protesters were roughly the same distance from the President as the supporters. But unlike the supporters, whose sight and access were obstructed by the U. S. Hotel, only a parking lot separated the protesters from the patio. The protesters thus remained within weapons range of, and had a direct line of sight to, the President’s location. This sight line is illustrated by the broken arrow marked on the map below.[2] After another 15 minutes passed, the agents directed the officers again to move the protesters, this time one block farther away from the Inn, to the east side of Fifth Street. The relocation was necessary, the agents told the local officers, to ensure that no demonstrator would be “within handgun or explosive range of the President.” App. to Pet. for Cert. 177a. The agents, however, did not require the guests already inside the Inn to leave, stay clear of the patio, or go through any security screening. The supporters at all times retained their original location on the west side of Third Street. After the President dined, the motorcade left the Inn by traveling south on Third Street toward the cottage. On its way, the motorcade passed the President’s supporters. The protesters remained on Fifth Street, two blocks away from the motorcade’s route, thus beyond the President’s sight and hearing. B The protesters sued the agents for damages in the U. S. District Court for the District of Oregon. The agents’ actions, the complaint asserted, violated the protesters’ First Amendment rights by the manner in which the agents established a security perimeter around the President during his unscheduled stop for dinner. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) (recognizing claim for damages against federal agents for violations of plaintiff’s Fourth Amendment rights).[3] Specifically, the protesters alleged that the agents engaged in viewpoint discrimination when they moved the protesters away from the Inn, while allowing the supporters to remain in their original location. The agents moved to dismiss the complaint on the ground that the protesters’ allegations were insufficient to state a claim for violation of the First Amendment. The agents further maintained that they were sheltered by qualified immunity because the constitutional right alleged by the protesters was not clearly established. The District Court denied the motion, see Moss v. United States Secret Serv., 2007 WL 2915608, *1, 20 (D Ore., Oct. 7, 2007), but on interlocutory appeal,[4] the U. S. Court of Appeals for the Ninth Circuit reversed. See Moss v. United States Secret Serv., 572 F. 3d 962 (2009). The facts alleged in the complaint, the Court of Appeals held, were insufficient to state a First Amendment claim under the pleading standards prescribed in Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007) , and Ashcroft v. Iqbal, 556 U. S. 662 (2009) . 572 F. 3d, at 974–975.[5] Because Twombly and Iqbal were decided after the protesters filed their complaint, however, the Ninth Circuit instructed the District Court to grant the protesters leave to amend. 572 F. 3d, at 972. On remand, the protesters supplemented their complaint with allegations that the agents acted pursuant to an “actual but unwritten” Secret Service policy of “work[ing] with the White House under President Bush to eliminate dissent and protest from presidential appearances.” App. to Pet. for Cert. 184a. Relying on published media reports, the protesters’ amended complaint cited several instances in which other Secret Service agents allegedly engaged in conduct designed to suppress expression critical of President Bush at his public appearances. The amended complaint also included an excerpt from a White House manual instructing the President’s advance team to “work with the Secret Service and have them ask the local police department to designate a protest area where demonstrators can be placed; preferably not in view of the event site or motorcade route.” Id., at 219a. See also id., at 183a. The agents renewed their motion to dismiss the suit for failure to state a claim and on qualified immunity grounds. The District Court denied the motion, holding that the complaint adequately alleged a violation of the First Amendment, and that the constitutional right asserted was clearly established. Moss v. United States Secret Serv., 750 F. Supp. 2d 1197, 1216–1228 (Ore. 2010). The agents again sought an interlocutory appeal. This time, the Ninth Circuit affirmed, 711 F. 3d 941, satisfied that the amended pleading plausibly alleged that the agents “sought to suppress [the protesters’] political speech” based on the viewpoint they expressed, id., at 958. Viewpoint-driven conduct, the Court of Appeals maintained, could be inferred from the absence of a legitimate security rationale for “the differential treatment” accorded the two groups of demonstrators. See id., at 946. The Court of Appeals further held that the agents were not entitled to qualified immunity because this Court’s precedent “make[s] clear . . . ‘that the government may not regulate speech based on its substantive content or the message it conveys.’ ” Id., at 963 (quoting Rosenberger, 515 U. S., at 828). The agents petitioned for rehearing and rehearing en banc, urging that the panel erred in finding the alleged constitutional violation clearly established. Over the dissent of eight judges, the Ninth Circuit denied the en banc petition. See 711 F. 3d, at 947 (O’Scannlain, J., dissenting from denial of rehearing en banc). We granted certiorari. 571 U. S. ___ (2013). II A It is uncontested and uncontestable that government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government actor fears, dislikes, or disagrees with the views those persons express. See, e.g., Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972) . It is equally plain that the fundamental right to speak secured by the First Amendment does not leave people at liberty to pub-licize their views “ ‘whenever and however and wher-ever they please.’ ” United States v. Grace, 461 U. S. 171 –178 (1983) (quoting Adderly v. Florida, 385 U. S.39, 48 (1966)). Our decision in this case starts from those premises. The particular question before us is whether the protesters have alleged violation of a clearly established First Amendment right based on the agents’ decision to order the protesters moved from their original location in front of the Inn, first to the block just east of the Inn, and then another block farther. We note, initially, an antecedent issue: Does the First Amendment give rise to an implied right of action for damages against federal officers who violate that Amendment’s guarantees? In Bivens, cited supra, at 8, we recognized an implied right of action against federal officers for violations of the Fourth Amendment. Thereafter, we have several times assumed without deciding that Bivens extends to First Amendment claims. See, e.g., Iqbal, 556 U. S., at 675. We do so again in this case. See Tr. of Oral Arg. 10–11 (counsel for petitioners observed that the implication of a right to sue derived from the First Amendment itself was an issue “not preserved below” and therefore “not presented” in this Court). The doctrine of qualified immunity protects government officials from liability for civil damages “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at 3). And under the governing pleading standard, the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U. S., at 678 (internal quotation marks omitted). Requiring the alleged violation of law to be “clearly established” “balances . . . the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U. S. 223, 231 (2009) . The “dispositive inquiry,” we have said, “is whether it would [have been] clear to a reasonable officer” in the agents’ position “that [their] conduct was unlawful in the situation [they] confronted.” Saucier v. Katz, 533 U. S. 194, 202 (2001) . At the time of the Jacksonville incident, this Court had addressed a constitutional challenge to Secret Service actions on only one occasion.[6] In Hunter v. Bryant, 502 U. S. 224 (1991) (per curiam), the plaintiff sued two Secret Service agents alleging that they arrested him without probable cause for writing and delivering to two Univer-sity of Southern California offices a letter referring to a plot to assassinate President Ronald Reagan. We held that qualified immunity shielded the agents from claims that the arrest violated the plaintiff’s rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments. “[N]owhere,” we stated, is “accommodation for reasonable error . . . more important than when the specter of Presidential assassination is raised.” Id., at 229. In other contexts, we have similarly recognized the Nation’s “valid, even . . . overwhelming, interest in protecting the safety of its Chief Executive.” Watts, 394 U. S., at 707. See also Rubin v. United States, 525 U. S. 990 –991 (1998) (Breyer, J., dissenting from denial of certio-rari) (“The physical security of the President of the United States has a special legal role to play in our constitutional system.”). Mindful that “[o]fficers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy,” Reichle v. Howards, 566 U. S. ___, ___ (2012) (Ginsburg, J., concurring in judgment) (slip op., at 2), we address the key question: Should it have been clear to the agents that the security perimeter they established violated the First Amendment? B The protesters assert that it violated clearly established First Amendment law to deny them “equal access to the President,” App. Pet. for Cert. 175a, during his dinner at the Inn and subsequent drive to the cottage, id., at 185a.[7] The Court of Appeals agreed, holding that the agents violated clearly established law by moving the protesters to a location that “was in relevant ways not comparable to the place where the pro-Bush group was allowed to remain.” 711 F. 3d, at 946 (internal quotation marks and ellipsis omitted). The Ninth Circuit did not deny that security concerns justified “mov[ing] the anti-Bush pro-testers somewhere.” Ibid. But, the court determined, no reason was shown for “the considerable disparity in the distance each group was allowed to stand from the Presidential party.” Ibid. The agents thus offended the First Amendment, in the Court of Appeals’ view, because their directions to the local officers placed the protesters at a “comparativ[e] disadvantag[e] in expressing their views” to the President. Ibid. No decision of which we are aware, however, would alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation “to ensure that groups with different viewpoints are at comparable locations at all times.” Id., at 952 (O’Scannlain, J., dissenting from denial of rehearing en banc). Nor would the maintenance of equal access make sense in the situation the agents confronted. Recall that at the protesters’ location on the north side of California Street, see supra, at 4, they faced an alley giving them a direct line of sight to the outdoor patio where the President stopped to dine. The first move, to the corner of Fourth and California Streets, proved no solution, for there, only a parking lot stood between the protesters and the patio. True, at both locations, a six-foot wooden fence and an unspecified number of local police officers impeded access to the President. Even so, 200 to 300 protesters were within weapons range, and had a largely unobstructed view, of the President’s location. See Tr. of Oral Arg. 41 (counsel for respondents acknowledged that “in hindsight, you could . . . conclude” that “proximity [of the protesters to the President] alone . . . is enough to create a security [risk]”). See also Eggen & Fletcher, FBI: Grenade Was a Threat to Bush, Washington Post, May 19, 2005, p. A1 (reporting that a live grenade thrown at President Bush in 2005, had it detonated, could have injured him from 100 feet away). The protesters suggest that the agents could have moved the President’s supporters further to the west so that they would not be in range of the President when the motorcade drove from the Inn to the cottage where the President would stay overnight. See App. Pet. for Cert. 178a. As earlier explained, however, see supra, at 4–5, there would have been no security rationale for such a move. In contrast to the open alley and parking lot on the east side of the Inn, to the west of the Inn where the supporters stood, a large, two-story building blocked sight of, or weapons access to, the patio the agents endeavored to secure.[8] No clearly established law, we agree, required the Secret Service “to interfere with even more speech than security concerns would require in an attempt to keep opposing groups at roughly equal distances from the President.” Brief for Petitioners 32. And surely no such law required the agents to attempt to maintain equal dis-tances by “prevail[ing] upon the President not to dine at the Inn.” Oral Arg. Audio in No. 10–36152 (CA9) 42:22 to 43:36 (argument by protesters’ counsel), available at http://www.ca9.uscourts.gov/media/view.php?pk_id=0000008129.(as visited May 19, 2014, and in Clerk of Court’s case file) (argument tendered by protesters’ counsel). III The protesters allege that, when the agents directed their displacement, the agents acted not to ensure the President’s safety from handguns or explosive devices. Instead, the protesters urge, the agents had them moved solely to insulate the President from their message, thereby giving the President’s supporters greater visibility and audibility. See Tr. of Oral Arg. 35–36. The Ninth Circuit found sufficient the protesters’ allegations that the agents “acted with the sole intent to discriminate against [the protesters] because of their viewpoint”. 711 F. 3d, at 964. Accordingly, the Court of Appeals “allow[ed] the protestors’ claim of viewpoint discrimination to proceed.” Id., at 962. It may be, the agents acknowledged, that clearly established law proscribed the Secret Service from disadvantaging one group of speakers in comparison to another if the agents had “no objectively reasonable security rationale” for their conduct, but acted solely to inhibit the expression of disfavored views. See Tr. of Oral Arg. 28–29; Brief for Petitioners 52 (entitlement to relief might have been established if, for example, “the pro-Bush group had . . . been allowed to move into the nearer location that the anti-Bush had vacated”). We agree with the agents, however, that the map itself, reproduced supra, at 4, undermines the protesters’ allegations of viewpoint discrimination as the sole reason for the agents’ directions. The map corroborates that, because of their location, the protesters posed a potential security risk to the President, while the supporters, because of their location, did not. The protesters make three arguments to shore up their charge that the agents’ asserted security concerns are disingenuous. First, the protesters urge that, had the agents’ professed interest in the President’s safety been sincere, the agents would have directed all persons pres-ent at the Inn to be screened or removed from the prem-ises. See Brief for Respondents 27. But staff, other diners, and Inn guests were there even before the agents themselves knew that the President would dine at the Inn. See Brief for Petitioners 47. Those already at the Inn “could not have had any expectation that they would see the President that evening or any opportunity to premeditate a plan to cause him harm.” Reply Brief 16. The Secret Service, moreover, could take measures to ensure that the relatively small number of people already inside the Inn were kept under close watch; no similar surveillance would have been possible for 200 to 300 people congregating in front of the Inn. See ibid. The protesters also point to a White House manual, which states that the President’s advance team should “work with the Secret Service . . . to designate a protest area . . . preferably not in view of the event site or motorcade route.” App. to Pet. for Cert. 219a. This manual guides the conduct of the President’s political advance team. See id., at 220a (distinguishing between the political role of the advance team and the security mission of the Secret Service).[9] As the complaint acknowledges, the Secret Service has its own “written guidelines, directives, instructions and rules.” Id., at 184a. Those guides explicitly “prohibit Secret Service agents from discriminating between anti-government and pro-government demonstrators.” Ibid. The protesters maintain that the Secret Service does not adhere to its own written guides. They recite several instances in which Secret Service agents allegedly engaged in viewpoint discrimination. See id., at 189a–194a. Even accepting as true the submission that Secret Service agents, at times, have assisted in shielding the President from political speech, this case is scarcely one in which the agents acted “without a valid security reason.” Brief for Respondents 40. We emphasize, again, that the protesters were at least as close to the President as were the supporters when the motorcade arrived at the Jacksonville Inn. See supra, at 5. And as the map attached to the complaint shows, see supra, at 4, when the President reached the patio to dine, the protesters, but not the supporters, were within weapons range of his location. See supra, at 14. Given that situation, the protesters cannot plausibly urge that the agents “had no valid security reason to request or order the[ir] eviction.” App. to Pet. for Cert. 186a. We note, moreover, that individual government officials “cannot be held liable” in a Bivens suit “unless they themselves acted [unconstitutionally].” Iqbal, 556 U. S., at 683. We therefore decline to infer from alleged instances of misconduct on the part of particular agents an unwritten policy of the Secret Service to suppress disfavored expression, and then to attribute that supposed policy to all field-level operatives. See Reply Brief 20. * * * This case comes to us on the agents’ petition to review the Ninth Circuit’s denial of their qualified immunity defense. See Tr. of Oral Arg. 10 (petitioners’ briefing on appeal trained on the issue of qualified immunity). Limiting our decision to that question, we hold, for the reasons stated, that the agents are entitled to qualified immunity. Accordingly, we reverse the judgment of the Court of Appeals. It is so ordered.Notes 1 App. to Brief for Petitioners (Diagram A). 2 This map appears as an appendix to the agents’ opening brief. See App. to Brief for Petitioners (Diagram B). Except for the arrow, Diagram B is identical to the map included in the protesters’ complaint. 3 The protesters’ complaint also asserted claims against local police officers for using excessive force in violation of the . Those claims were dismissed for failure to state a claim, see v. ., 711 F. 3d 941, 954 (CA9 2013), and are not at issue here. 4 We have repeatedly “stressed the importance of resolving immunity questions at the earliest possible stage [of the] litigation,” v., (). 5 In ruling on a motion to dismiss, we have instructed, courts “must take all of the factual allegations in the complaint as true,” but “are not bound to accept as true a legal conclusion couched as a factual allegation.” v. (internal quotation marks omitted). 6 Subsequent to the incident at issue here, we held in v. , 566 U. S. ___, ___ (2012) (slip op., at 1), that two Secret Service agents were “immune from suit for allegedly arresting a suspect in retaliation for [negative comments he made about Vice President Cheney], when the agents had probable cause to arrest the suspect for committing a federal crime.” 7 The protesters, however, do not maintain that “the entitled them to be returned to their original location after the President’s dinner and before his motorcade departed.” Brief for Respondents 39–40, n. 7. They urge only that “it was constitutionally improper to move them in the first place.” , at 40, n. 7; see Tr. of Oral Arg. 50 (same). 8 Neither side contends that the presence of demonstrators along the President’s motorcade route posed an unmanageable security risk, or that there would have been a legitimate security rationale for removing the protesters, but not the supporters, from the motorcade route. The President’s detour for dinner, however, set the two groups apart. “[T]he security concerns arising from the presence of a large group of people near the open-air patio where the President was dining were plainly different from those associated with permitting a group . . . to remain along Third Street while the President’s [armored limousine] traveled by.” Brief for Petitioners 46. 9 “An ‘advance man’ is ‘[o]ne who arranges for publicity, protocol, transportation, speaking schedules, conferences with local government officials, and minute details of a visit, smoothing the way for a political figure.’ ” See 711 F. 3d, at 950, n. 2 (O’Scannlain, J., dissenting from denial of rehearing en banc) (quoting W. Safire, Safire’s Political Dictionary 8 (5th ed. 2008)).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus WOOD et al. v. MOSS et al. certiorari to the united states court of appeals for the ninth circuit No. 13–115. Argued March 26, 2014—Decided May 27, 2014 While campaigning for a second term, President George W. Bush was scheduled to spend the night at a Jacksonville, Oregon, cottage. Local law enforcement officials permitted a group of Bush supporters and a group of protesters to assemble on opposite sides of a street along the President’s motorcade route. When the President made a last-minute decision to have dinner at the outdoor patio area of the Jacksonville Inn’s restaurant before resuming the drive to the cottage, the protesters moved to an area in front of the Inn, which placed them within weapons range of the President. The supporters remained in their original location, where a two-story building blocked sight of, and weapons access to, the patio. At the direction of two Secret Service agents responsible for the President’s security, petitioners here (the agents), local police cleared the area where the protesters had gathered, eventually moving them two blocks away to a street beyond weapons reach of the President. The agents did not require the guests already inside the Inn to leave, stay clear of the patio, or go through a security screening. After the President dined, his motorcade passed the supporters, but the protesters, now two blocks from the motorcade’s route, were beyond his sight and hearing. The protesters sued the agents for damages, alleging that the agents engaged in viewpoint discrimination in violation of the First Amendment when they moved the protesters away from the Inn but allowed the supporters to remain in their original location. The District Court denied the agents’ motion to dismiss the suit for failure to state a claim and on qualified immunity grounds, but on interlocutory appeal, the Ninth Circuit reversed. The court held that the protesters had failed to state a First Amendment claim under the plead-ing standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, and Ashcroft v. Iqbal, 556 U.S. 662. Because those decisions were rendered after the protesters commenced suit, the Court of Appeals granted leave to amend the complaint. On remand, the protesters supplemented the complaint with allegations that the agents acted pursuant to an unwritten Secret Service policy of working with the Bush White House to inhibit the expression of disfavored views at presidential appearances. The District Court denied the agents’ renewed motion to dismiss. This time, the Ninth Circuit affirmed, concluding that viewpoint-driven conduct on the agents’ part could be inferred from the absence of a legitimate security rationale for the different treatment accorded the two groups of demonstrators. The Court of Appeals further held that the agents were not entitled to qualified immunity because this Court’s precedent made clear that the Government may not regulate speech based on its content. Held: The agents are entitled to qualified immunity. . (a) Government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government actor fears, dislikes, or disagrees with the views expressed. See, e.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96. The fundamental right to speak, however, does not leave people at liberty to publicize their views “ ‘whenever and however and wherever they please.’ ” United States v. Grace, 461 U.S. 171, 177. In deciding whether the protesters have alleged violation of a clearly established First Amendment right, this Court assumes without deciding that Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, which involved alleged Fourth Amendment violations, extends to First Amendment claims, see, e.g., Iqbal, 556 U. S., at 675. The doctrine of qualified immunity protects government officials from liability for civil damages “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U. S. ___, ___. The “dispositive inquiry . . . is whether it would [have been] clear to a reasonable officer” in the agents’ position “that [their] conduct was unlawful in the situation [they] confronted.” Saucier v. Katz, 533 U.S. 194, 202. At the time of the Jacksonville incident, this Court had addressed a constitutional challenge to Secret Service actions only once. In Hunter v. Bryant, 502 U.S. 224, the plaintiff challenged the lawfulness of his arrest by two Secret Service agents for writing and delivering a letter about a plot to assassinate President Reagan. Holding that the agents were shielded by qualified immunity, the Court stated that “accommodation for reasonable error . . . is nowhere more important than when the specter of Presidential assassination is raised.” Id., at 229. This Court has recognized the overwhelming importance of safeguarding the President in other contexts as well. See Watts v. United States, 394 U.S. 705, 707. Mindful that officers may be faced with unanticipated security situations, the key question addressed is whether it should have been clear to the agents that the security perimeter they established violated the First Amendment. . (b) The protesters assert, and the Ninth Circuit agreed, that the agents violated clearly established federal law by denying them “equal access to the President.” No decision of which the Court is aware, however, would alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation to make sure that groups with conflicting views are at all times in equivalent positions. Nor would the maintenance of equal access make sense in the situation the agents here confronted, where only the protesters, not the supporters, had a direct line of sight to the patio where the President was dining. The protesters suggest that the agents could have moved the supporters out of the motorcade’s range as well, but there would have been no security rationale for such a move. . (c) The protesters allege that, in directing their displacement, the agents acted not to ensure the President’s safety, but to insulate the President from their message. These allegations are undermined by a map of the area, which shows that, because of the protesters’ location, they posed a potential security risk to the President, while the supporters, because of their location, did not. The protesters’ counterarguments are unavailing. They urge that, had the agents’ professed interest in the President’s safety been sincere, the agents would have screened or removed from the premises persons already at the Inn when the President arrived. But staff, other diners, and Inn guests were on the premises before the agents knew of the President’s plans, and thus could not have anticipated seeing the President, no less causing harm to him. The agents also could keep a close watch on the relatively small number of people already inside the Inn, surveillance that would have been impossible for the hundreds of people outside the Inn. A White House manual directs the President’s advance team to “work with the Secret Service . . . to designate a protest area . . . preferably not in view of the event site or motorcade route.” The manual guides the conduct of the political advance team, not the Secret Service, whose own written guides explicitly prohibit “agents from discriminating between anti-government and pro-government demonstrators.” Even assuming, as the protesters maintain, that other agents, at other times and places, have assisted in shielding the President from political speech, this case is scarcely one in which the agents lacked a valid security reason for their ac-tions. Moreover, because individual government officials “cannot be held liable” in a Bivens suit “unless they themselves acted [unconstitutionally],” Iqbal, 556 U. S., at 683, this Court declines to infer from alleged instances of misconduct on the part of particular agents an unwritten Secret Service policy to suppress disfavored expression, and then attribute that supposed policy to all field-level operatives. . 711 F.3d 941, reversed. Ginsburg, J., delivered the opinion for a unanimous Court.

On the evening of October 14, 2004, while President George W. Bush was visiting Jacksonville, Oregon, a group of individuals (respondents) organized a demonstration to express their opposition to the President and his policies. One group supported the President, the other opposed him. The President made a last-minute decision to stop in town for dinner before completing the drive to the cottage, and therefore his motorcade turned from the planned route and proceeded to the outdoor patio dining area of the Jacksonville Inn. The protesters moved down the sidewalk to the area in front of the Inn, but remained across the street and about a half block away from the Inn. At the direction of Secret Service agents, the agents cleared the block on which the Inn was located and moved the protesters some two blocks away to a street beyond handgun or explosive reach of the President. The agents, however, did not require the guests already inside the Inn to leave, stay clear of the patio, or go through any security screening, and the protesters at all times retained their original location on the west side of Third Street. After the President dined, the motorcade passed the President’s supporters, but the protesters remained on Fifth Street, two blocks from the hotel, beyond the President's sight and hearing. Respondents then brought suit in Federal District Court, alleging that the agents violated their First Amendment rights by the manner in which the agents established a security perimeter around the President during his unscheduled stop for dinner. The agents moved to dismiss the complaint on the ground that the protesters' allegations were insufficient to state a claim for violation of the First Amendment, and that they were sheltered by qualified immunity because the constitutional right alleged by the protesters was not clearly established. The court denied the motion. The Court of Appeals reversed, holding that the facts were insufficient under First Amendment standards, but prescribed a claim under the facts. Held: 1. The First Amendment does not give rise to an implied right of action for damages against federal officers who violate that Amendment's guarantees. See, e.g., Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388; Oral Arg. 562, 575 F.2d 562. . (a) It is uncontested and uncontestable that government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government actor fears, dislikes, or disagrees with the views those persons express. Here, clearly established First Amendment law proscribed the Secret Service from disadvantaging one group of speakers in comparison to another if the agents had no objectively reasonable security rationale for their conduct, but acted solely to inhibit the expression of disfavored views. Although the agents acknowledged that their professed interest in the Presidents safety would have been sincere, they did not bear the obligation to ensure a crowd that would bear the risk of harm that would otherwise exist. Moreover, the facts presented in the complaint did not prove that their conduct was unconstitutional, since the protesters were within weapons range from the President at the time of the incident in question. Pp. 711 F. 3d 941. (b) The agents are entitled to qualified immunity. There is no merit to respondents' allegations that they acted with the sole intent to discriminate against the protesters because of their viewpoint. The map in question undermines the allegations of viewpoint discrimination as the sole reason for the agents' directions. Because of their location, the protesters posed a potential security risk to President, while the supporters did not. No decision of which this Court is aware is alerted, but, nevertheless, this Court declines to infer from alleged misconduct on the part of particular agents an unwritten Secret Service policy to suppress disfavor expression, and then to attribute that supposed policy to all field-level operatives. Cf. v., 566 U.S. ___, ___ (2012) (slip op., at 1), which held that a Secret Service agent was immune from suit for violations of the Fourth Amendment when the agents directed his directions to local police officers for using excessive force in violation of an established security perimeter. Similarly, there is no basis for showing that security concerns justified moving the protesters to a location that was in relevant ways not comparable to the place where the pro-Bush group was allowed to remain. Since the agents did not adhere to its own written guides, they cannot plausibly urge that they had no valid security reason to request or order the eviction. Furthermore, individual government officials cannot be held liable unless they themselves acted unconstitutionally. Ibid. Thus, it is therefore not inferred from alleged instances of misconduct by particular agents that Secret Service policies were unwritten. And since this Court has repeatedly stressed the importance of resolving immunity questions at the earliest possible stage [of the litigation], courts must take all of the factual allegations in a complaint as true, but are not bound to accept as true a legal conclusion couched as a factual allegation